Talus (Keele) Limited v. Toronto (City), 2022 CanLII 69421

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 27, 2022

CASE NO(S).: OLT-21-001132

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by: Talus (Keele) Limited

Subject: Site Plan

Property Address/Description: 611 - 623 Keele Street

Municipality: City of Toronto

OLT Case No.: OLT-21-001132

OLT Lead Case No.: OLT-21-001132

OLT Case Name: Talus (Keele) Limited v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Talus (Keele) Limited

Subject: Minor Variance

Variance from By-law No.: By-law No. 438-86 and By-law No. 569-2013

Property Address/Description: 611 - 623 Keele Street

Municipality: City of Toronto

Municipal File No.: 2021-A-21

OLT Case No.: OLT-21-001507

OLT Lead Case No.: OLT-21-001132

Heard: March 7, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

Talus (Keele) Limited

Calvin Lantz, Jonathan Cheng

City of Toronto

Adrienne deBacker

DECISION DELIVERED BY JATINDER BHULLAR AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Talus (Keele) Limited (“Applicant/Appellant”) has property located in the City of Toronto (the “City”). The property is municipally known as 611-623 Keele Street (the “Subject Property”). The Applicant/Appellant appealed two matters to the Tribunal. A set of minor variances were refused by the City and this refusal is appealed under s. 45(12) of the Planning Act (“Act”). An associated site plan application for the Subject Property is before the Tribunal under s. 41(12) of the Act.

2The City informed the Tribunal that they do not oppose the Appeal of minor variances associated with Tribunal Case No. OLT-21-001507.

3The two appeals have previously been consolidated for hearing purposes.

4The Parties jointly requested that with the possibility of a successful outcome of the minor variances’ appeal, the site plan control appeal be separated and put in abeyance. The Parties further informed the Tribunal that they plan to iron out their differences past the possible approval of the minor variances’ appeal and if successful, the Applicant/Appellant would then withdraw their appeal regarding the site plan control.

SEPARATION OF CONSOLIDATED APPEALS

5Having received and considered the submissions of the Parties, the Tribunal under the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”) as provided for in Rule 16.4 separated the two appeal matters:

16.4 Tribunal May Reverse Decision for Consolidated Proceedings The Tribunal may separate consolidated proceedings or matters heard together at any time if it finds that the proceedings have become unduly complicated, delayed or repetitive or a party is unduly prejudiced.

6Further, the Tribunal ordered that the site plan control appeal (OLT-21-001132) is held in abeyance and the Applicant/Appellant shall update the Tribunal on the status of this appeal in six months from the date of issuance of this Decision.

WITNESSES

7Michael Bissett was called by the Applicant/Appellant and affirmed by the Tribunal. Without objection from the City and having reviewed Mr. Bissett’s credentials and acknowledgement of expert’s duty; Mr. Bissett was qualified by the Tribunal to provide expert opinion evidence in the area of land use planning.

EXHIBITS

8The following Exhibits were marked at the hearing:

Exhibit 1: Document Book

Exhibit 2: Visual Evidence

Exhibit 3: Staff Report

Exhibit 4: Outline of Evidence

EVIDENCE

9Mr. Bissett tailored his evidence in the context of statutory tests that must be met. He stated that for minor variance(s) to be authorized per s. 45(1) of the Act, the following four tests are to be met:

a. Is the general intent and purpose of the Official Plan maintained?

b. Is the general intent and purpose of the Zoning By-law maintained?

c. Is it desirable for the appropriate development or use of the land?

d. And is it minor in nature?

10Mr. Bissett provided details of the requested variances for the Subject Property as follows:

List of Requested Minor Variances:

1. Section 4(2) and District Map 48J-312 Appendix "B", By-law 438-86

The maximum permitted building height is 14 m.

The proposed building will have a height of 17.5 m.

2. Section 4(2)(a)(ii), By-law 438-86

No person shall erect or use a building or structure on a lot having a greater height in metres than the height limit specified for the lot, but this does not prevent the erection or use of: a structure, on the roof of the building, used for outside or open air recreation, safety or wind protection purposes, provided that the maximum height of the top of the structure is no higher than the sum of 3.0 m and the height limit applicable to the lot and with the exception of parapets, no part of the structure is less than two metres from an adjacent outside wall or a vertical projection of the wall, however, such structures may be located more than 2.0 m from an adjacent outside wall.

In this case, the height limits specified for the lot do not prevent the erection or use of a structure on the roof of the building for outside or open air recreation, privacy, safety, environmental benefit, ornamentation or wind protection purposes, including but not limited to elements such as green roofs, railings, fences, and parapets, provided that the maximum height of the top of such elements is no higher than the sum of 3.0 m and the applicable height limit for the lot and no part of such elements shall protrude beyond an adjacent outside wall or a vertical projection of such wall.

3. Section 4(4)(b), By-law 438-86

A minimum of 21 parking spaces are required.

A total of 8 parking space will be provided.

4. Section 4(7)(b), By-law 438-86

The minimum required loading area is 190 m² and a minimum required loading space width of 4 m.

A total of 2 Type B loading spaces will be provided and each loading space will have a width of 3.5 m.

5. Section 2(1) Definition of "Grade", By-law 438-86

"Grade" can be defined as the average elevation of the sidewalk, or where there is no sidewalk, of the roadway in front of the lot on which the building stands.

11Mr. Bissett provided oral testimony as well as a written outline of his expert opinion evidence marked as Exhibit 4. The opinion evidence was uncontroverted and unopposed. The following is extracted in part from Mr. Bissett’s evidence on file (Exhibit 4);

1. Maintain the general intent and purpose of the Official Plan

• For the reasons I have stated, it is my opinion that the proposed variances for a minor increase in height along with reduced parking and loading maintain the general intent and purpose of the Official Plan.

• The proposal provides for a development contemplated by policies 2.2 and 4.6.3, in a compact form with appropriate design in accordance with Policies 3.1.1 and 3.1.2.

• The stepping of the upper floor minimizes the view of the upper floor and there are no impacts in terms of shadows of privacy and overlook resulting from the upper floor.

• The reduced parking and loading allows for a more efficient use of the lands, internal to the site.

2. Maintain the general intent and purpose of the Zoning By-law

Variance 1 – Increase height from 14 m to 17.5 m

• The proposed height variance maintains the intent of the bylaw to mitigate impacts through the following measures in summary:

• At the fifth floor [the portion of the building that exceeds the as-of-right Zoning By-law height permissions] of the Proposed Development, the building steps back from the main building walls to minimize visual impact from the pedestrian realm as well as from the adjacent homes to the east. In addition to ensuring an appropriate transition in height between the land uses, the step-back also lessens the incremental shadow impact of the additional height on adjacent properties and the pedestrian realm.

• The façade of the fifth floor of the Proposed Development incorporates horizontal prefinished metal panels that are darker in colour, compared to the lower storeys of the building that consist of brick faced precast concrete panels and vertical prefinished metal panel accents. These design elements reduce the visual impact of the fifth storey – the fifth storey will appear to recede from a pedestrian viewpoint.

Variance 2 – to allow for up to 3.0 metre projections, including greenroofs, railings and parapets

• The Zoning By-law provides exclusions for structures on the roof of a building used for outside or open-air recreation, safety, or wind protection purposes from having to comply with the maximum permitted building height. The variance proposes that additional rooftop elements including those that have an environmental benefit and for building ornamentation purposes are also excluded from the proposed maximum building height envelope. The requested variance also specifies that none of such elements shall project beyond an outside wall into the required setback so as not to increase the visual impact of such exempted elements.

Variance 3 – Reduced parking requirement from 21 spaces to 8 spaces

• The proposed variances for reduced parking and loading maintain the intent to provide adequate parking and loading for the proposed needs, as assessed through a parking and loading study that was accepted by staff (refer to staff report).

• A memorandum prepared by BA Group, dated July 17, 2020, evaluates the parking supply for the Proposed Development in the context of the parking requirements in the Zoning By-law, provides a survey of approved minimum parking supply ratios at other self-storage facilities in the City of Toronto, as well as documenting the observed parking demand at three (3) comparable proxy sites that were included in a formal Urban Transportation Considerations Report, prepared in August 2019 (the “TC Report”), and filed with the City in support of the Site Plan Approval application for the Property. The TC Report concludes that a parking rate of 0.09 parking spaces / 100 square metres of Total Floor Area is appropriate for the Proposed Development and self-storage use, a conclusion endorsed by the City of Toronto Development Engineering Department in their commenting memorandum, dated October 3, 2019.

• Utilizing the 0.09 parking spaces / 100 square metres of Total Floor Area parking ratio and applying it to the Proposed Development would result in the requirement for seven (7) parking spaces, whereas eight (8) parking spaces are provided. Therefore, the proposed variance to allow the number of parking spaces provided on the Property to be reduced from the number of spaces required by the Zoning By-law, should not result in negative impacts.

Variance 4 – reduced loading space width from 4 m to 3.5 m

• The intent of the minimum loading area requirement in the Zoning By-law is to ensure that there is adequate space within a proposed building to accommodate various sizes of loading vehicles and to allow the building user to determine what loading space facilities are needed for their particular warehousing operation. In order to determine the loading area needs of the Proposed Development, BA Group conducted an analysis of three proxy self-storage facilities in the City of Toronto. The study was accepted by staff.

• The Memorandum states that the proposed self-storage facility will not require large truck/trailer loading access, as the target market for the proposed self-storage facility on the Property is primarily local residential storage customers. Thus, the majority of vehicles utilizing the self-storage facility will be private cars, with a smaller number of medium sized vehicles, including vans and single-use trucks. No ‘heavy’ vehicles were recorded utilizing the proxy sites.

• The Memorandum further notes that the types of vehicles that were recorded as utilizing the proxy sites require the use of a loading space – type “B”. Based on Section 2(1) of the Zoning By-law, the minimum dimensions of a loading space – type “B” are as follows:

• Width: 3.5 m

• Length: 11 m

• Vertical Clearance: 4 m

• The loading spaces provided on the Property will exceed the minimum loading space – type “B” dimensions. Furthermore, the maximum number of vehicles that require the use of a loading space – type “B” at any given time is two (2) medium vehicles, based on the results of the proxy site analysis.

• The loading area provided on the Property will comply with the loading area requirement of the Zoning By-law, but the width of the loading spaces is proposed to be varied to comply with the current width dimension for a loading space – type “B”.

Variance 5 – specific definition of “grade” to reflect the grade of 149.75 m to ensure the proposed height of 17.5 m allows for the proposal.

• Whereas in Zoning By-law No. 438-86, “Grade” is defined as follows:

“grade” means:

(i) in an R district, the average elevation of the natural or the finished level of the ground adjoining the front wall of a building, whichever is the lower; and

(ii) in a G, Gh, T, CR, MCR, RA, Q, I or Tr district, the average elevation of the sidewalk or, where there is no sidewalk, of the roadway in front of the lot on which the building stands; (425-93) (1994-0178) (1995-0492) (1996-0238)

• The proposed technical variances relating to grade definition and projections above the rooftop are intended to provide clarity in reviewing the proposed plans at the permit stage with the following definition to be applied specific to this site development:

o "Grade" can be defined as the average elevation of the sidewalk, or where there is no sidewalk, of the roadway in front of the lot on which the building stands.

3. Desirable for the appropriate development or use of the lands

• The proposed variances are desirable to enable the intended use of the site as a multi-storey, intensified Storage Warehouse Class A (self-storage facility).

• The variances will allow for a development that will enhance the streetscape from its current underutilized and unattractive condition, towards a pedestrian friendly and well-framed condition. The variances to increased height and reduce the parking and loading are desirable in that they make a more efficient use of land in a manner that is compatible and reflective of the ongoing evolution toward intensification in the area.

4. Is Minor

• The proposed variances are minor in my opinion as they will result in no negative impacts on adjacent properties. The increase in height is a slight increase of 3.5 metres above the 14-metre height limit, with a step-back to reduce its visibility from the public realm.

• The parking and loading variances have no impact on adjacent properties as the entirety of the parking is internalized with no noise impacts and no concerns were raised by the traffic consultants that parking to meet the needs of this specific use could not be accommodated adequately on site.

12Mr. Bissett also reviewed concerned citizen’s comments, which generally wanted a different type of development versus the proposed. Mr. Bissett opined that, in fact, the proposed development is most appropriate given the location and designated purpose of the subject lands in the City’s planning framework.

13The Tribunal having regard for all the material on file and the uncontroverted and unopposed written testimony and oral expert opinion evidence of Mr. Bissett, finds that the requested minor variances, considered separately and together maintain the general intent and purpose of the Official Plan and the Zoning By-law, are desirable for the appropriate development or use of the subject lands and are minor separately as well as when considered together.

14THE TRIBUNAL ORDERS that the appeal is allowed in part and the following variances to Zoning By-law No. 438-86 are authorized:

1. Section 4(2) and District Map 48J-312 Appendix "B", By-law No. 438-86

The maximum permitted building height is 14 metres.

The proposed building will have a height of 17.5 metres.

2. Section 4(2)(a)(ii), By-law No. 438-86

No person shall erect or use a building or structure on a lot having a greater height in metres than the height limit specified for the lot, but this does not prevent the erection or use of: a structure, on the roof of the building, used for outside or open air recreation, safety or wind protection purposes, provided that the maximum height of the top of the structure is no higher than the sum of 3.0 metres and the height limit applicable to the lot and with the exception of parapets, no part of the structure is less than two metres from an adjacent outside wall or a vertical projection of the wall, however, such structures may be located more than 2.0 metres from an adjacent outside wall.

In this case, the height limits specified for the lot do not prevent the erection or use of a structure on the roof of the building for outside or open air recreation, privacy, safety, environmental benefit, ornamentation or wind protection purposes, including but not limited to elements such as green roofs, railings, fences, and parapets, provided that the maximum height of the top of such elements is no higher than the sum of 3.0 metres and the applicable height limit for the lot and no part of such elements shall protrude beyond an adjacent outside wall or a vertical projection of such wall.

3. Section 4(4)(b), By-law No. 438-86

A minimum of 21 parking spaces are required.

A total of eight parking space will be provided.

4. Section 4(7)(b), By-law No. 438-86

The minimum required loading area is 190 square metres and a minimum required loading space width of 4 metres.

A total of 2 Type B loading spaces will be provided and each loading space will have a width of 3.5 metres.

5. Section 2(1) Definition of "Grade", By-law No. 438-86

"Grade" can be defined as the average elevation of the sidewalk, or where there is no sidewalk, of the roadway in front of the lot on which the building stands.

“Jatinder Bhullar”

JATINDER BHULLAR

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.