Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 05, 2024
CASE NO(S).: OLT-23-000401
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: 8 De Grassi Street Development Inc.
Subject: Minor Variance
Description: To permit a 6-storey mixed-use building
Reference Number: 22 240793 STE 14 MV
Property Address: 8 Degrassi Street
Municipality/UT: Toronto/Toronto
OLT Case No.: OLT-23-000401
OLT Lead Case No.: OLT-23-000401
OLT Case Name: 8 De Grassi Street Development Inc. v. Toronto (City)
Heard: November 17, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
8 De Grassi Street Development Inc.
Michael Froderick
(“Appellant”)
Jamie Cole
City of Toronto (“Toronto”)
Adam Ward
(“Toronto”)
Ray Kallio (in absentia)
DECISION DELIVERED BY A. sauve AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The Appellant filed this appeal of a non-decision of the Committee of Adjustment (“C of A”) regarding a request for 11 minor variances. It should be noted that there is a related Site Plan appeal that has also been filed with the Tribunal but is a separate file and not the subject of this Hearing. The purpose of the application is to facilitate a six-storey mixed use building on the subject land that is currently vacant (“Proposed Development”). The Proposed Development will include 15 residential dwelling units and a commercial unit at grade with a total gross floor area of approximately 768 square metres (“m2”). The subject land is an irregular-shaped parcel and is approximately 219 m2 in area.
2The subject land is located at 8 De Grassi Street. The land is currently designated to be Mixed Use Areas in the City of Toronto (“City”) Official Plan (“OP”). The subject land is under zoning CR 2.5 (c2.0, r2.0,) SS2 Height 14m Policy Area 4 (ZZC). A proposed Riverside-Leslieville Subway Station on the Ontario Line is to be located on Degrassi Avenue at Queen Street East, which is approximately one block away from this Proposed Development.
3Urban Forestry, in its staff report dated March 15, 2023, indicated they had no objection to this application; however, they request one condition be imposed:
Where there is no existing street tree, the owner shall provide payment in lieu of planting of one street tree on the City road allowance abutting each of the sites involved in the application. The current cash-in-lieu payment is $583/tree.
4City staff had prepared a Planning Report for the C of A; however, no position on the application was included.
5The following variances are being sought by the Appellant:
Chapter 900.11.10 (2)(B)(ii)(iii), By-law 569-2013 - A minimum of two parking spaces for visitors is required to be provided on site. In this case, one accessible parking space will be provided on site.
Chapter 40.10.40.40.(1)(A), By-law 569-2013 - The maximum permitted floor space index is 2.5 times the area of the lot (487.25 m2). The mixed use building will have a floor space index equal to 3.94 times the area of the lot (768 m2).
Chapter 40.10.40.40.(1)(C), By-law 569-2013 - The maximum permitted residential floor space index is 2 times the area of the lot (389.8 m2). The mixed-use building will have a residential floor space index equal to 3.62 times the area of the lot (705.5 m2).
Chapter 200.15.1.(3), By-law 569-2013 - The entire length of an accessible parking space must be adjacent to a 1.5 metre (“m”) wide, accessible, barrier free aisle or path. The accessible parking space will not meet this requirement.
Chapter 40.10.40.10.(5), By-law 569-2013 - The minimum height of the first storey, measured between the floor of the first storey and the ceiling of the first storey, is 4.5 m. The height of the first storey will be 2.42 m.
Chapter 40.10.40.70.(2)(B)(i), By-law 569-2013 - The minimum required rear yard setback is 7.5 m. The mixed-use building will be located 0 m from the parking and second storey, and 3.9 m from the main building, from the rear (west) lot line.
Chapter 40.10.40.70.(2)(C), By-law 569-2013 - The minimum required setback from a lot line that is not adjacent to a street or lane, where there are windows or openings, is 5.5 m. The main wall will be located 0 m from the private lane on the side (south) lot line.
Chapter 40.10.40.70.(2)(E)(i), By-law 569-2013 - In the CR Zone, every building on a lot abutting an O, ON or OR zone, or the Residential Zone category or Residential Apartment Zone category, may not penetrate a 45-degree angular plane projected over a shallow lot along the entire required rear yard setback, starting at a height of 10.5 m above the average elevation of the ground along the rear lot line. The mixed-use building will penetrate the angular plane.
Chapter 40.10.40.70.(2)(G), By-law 569-2013 - The building must not penetrate a 45-degree angular plane equal to 80% of the width of the street right-of-way on which the lot fronts. The mixed-use building will penetrate the angular plane.
Chapter 40.10.40.10.(2)(A), By-law 569-2013 - The maximum permitted height of the building or structure on a lot subject to Development Standard Set 2(SS2) is 14 m, and the maximum permitted height for equipment and structures on the roof of the building used for the functional operation of the building is 5 m. The height of the mixed-use building will be 16.79 m. The height of equipment and structures on the roof used for the functional operation and rooftop amenity space will be an additional 4.4 m.
Chapter 40.10.40.60.(1)(C)(i), By-law 569-2013 - A platform or similar structure, attached to or less than 0.3 m from a building subject to Development Standard Set 2 (SS2), and attached to the front main wall with a floor level higher than the floor level of the first floor of the building must be located above the three storeys closest to established grade. The balconies along the front façade will be located at all storeys above grade, starting at the second storey.
6The City is taking no position on this appeal and its counsel was only in attendance for observation.
PARTICIPANT STATUS REQUESTS
7The Tribunal received no Party status requests for this matter.
8The Tribunal received seven Participant status requests for this matter. All seven were submitted by neighbours with an interest in this matter. On consent, the following Participant status requests were granted to:
David Baker;
Jim Mikell;
Nada Raza;
Kit Chipman;
Paul Calarco;
Stephanie English; and
Susanne Alexandor.
EXHIBITS
9The following materials were marked as exhibits at this Hearing:
Evidence outline of Mike Dror;
Visual evidence book; and
Document book.
PROPOSED AMENDMENT TO VARIANCE 1
10The original variance that was sought by the Appellant, and what was included on the notice, was for a variance from the requirement that a minimum of eight parking spaces for the residents and one parking space for the visitors are required to be provided on site. However, the project requires only two on site parking spaces to be provided. The Appellant used an incorrect calculation that has now been corrected. The change being sought is minor in nature and no notice is required. This represents a reduction in the variance being sought.
EVIDENCE
11The Tribunal heard from one witness, Mike Dror, who was qualified to provide expert opinion evidence in the field of Land Use Planning for this Hearing. The Tribunal found Mr. Dror’s uncontested evidence compelling and thorough and accepts it in its entirety.
12Concerning the Planning Act, Mr. Dror opined that the proposal has appropriate regard to matters of provincial interest set forth in s. 2 of the Planning Act. Mr. Dror believes that this application is a good example of “gentle density” on an unused lot in an area that a new subway station is proposed nearby. In particular, the Proposed Development would further the achievement of the following matters of provincial interest, among others:
(f) The efficient use of transportation services;
(h) The orderly development of safe and healthy communities;
(h.1) The accessibility for persons with disabilities;
(j) The adequate provision of a full range of housing;
(p) The appropriate location for growth and development;
(q) The promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians; and
(r) The promotion of built form that is well designed, encourages a sense of place.
13The Tribunal accepts Mr. Dror’s analysis and finds that the application has appropriate regard to matters of provincial interest.
14Mr. Dror also opined that the proposal is consistent with the Provincial Policy Statement, 2020 (“PPS”), and in particular, the policies relating to residential intensification, the efficient use of land and infrastructure, transit-supportive development, and housing supply.
15He went on to give evidence that the proposed variances will facilitate the intensification of the site, which is located 30 m north of existing transit service, including the 501 Queen, 503 Kingston, and about 350 m east of the 504 King and across the street from the future Riverside-Leslieville Subway Station on the Ontario Line. Further, he stated the built form is compatible with the existing context consisting of low-rise buildings to the north, and the existing planned context to the west and southwest within the rest of the block.
16The Tribunal agrees with Mr. Dror that the proposal is consistent with the PPS.
17Concerning the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”), Mr. Dror opined that the proposal conforms with GP, and in particular, the policies that seek to optimize the use of land and infrastructure, and to encourage growth and intensification in strategic growth areas.
18Further, Mr. Dror stated that the subject land is part of a strategic growth area as defined by the GP. Strategic growth areas are a focus for accommodating intensification and higher-density mixed uses in a more compact built form. Strategic growth areas include, among other things, major transit station areas. The subject land falls within the definition of a major transit station area, defined as “the area including and around any existing or planned higher order transit station or stop within a settlement area.” Mr. Dror gave evidence that major transit station areas generally are defined as the area within an approximate 500 to 800 m radius of a transit station, representing about a 10-minute walk.
19Additionally, Mr. Dror stated that the proposed variances will facilitate the continued intensification of the major transit station area supporting a future subway station and that by permitting this Proposed Development, that is compatible with its surroundings, will result in a more efficient built form that will accommodate additional housing options.
20The Tribunal agrees with Mr. Dror that the minor variances requested conform with the GP.
THE FOUR TESTS
Do The Variances Conform To The General Intent Of The OP?
21Based on the evidence of Mr. Dror and the exhibits presented at the Hearing, the Tribunal finds that each variance conforms to the general intent of the OP.
22Mr. Dror provided evidence that the subject land is designated Mixed Use Areas. Section 4.5 of the OP sets out policies for the Mixed Use Areas designation. The Mixed Use Areas designation is one of four land use designations intended to accommodate most of the increase in jobs and population anticipated by the OP’s growth strategy. The designation is used to achieve a multitude of planning objectives by combining a broad range of residential, office, retail and services, institutions, entertainment, recreation and cultural uses, as well as parks and open spaces.
23Mr. Dror opined that one general intent of the OP is to reduce parking, especially near transit, and to target intensification to a location like the subject land. He went on to provide evidence that given that the location is adjacent to a planned subway station, this area will likely see significant intensification.
24Policy 3.1.1(15)(d) states:
New and existing city blocks and development lots within them will be designed to: promote street-oriented development with buildings fronting onto and having access and address from street and park edges.
25Policy 3.1.3(4)(f) states:
Development will locate and organize vehicle parking, vehicular access and ramps, loading, servicing, storage areas, and utilities to minimize their impact and improve the safety and attractiveness of the public realm, the site and surrounding by: limiting above-ground parking structures, integrating them within buildings, and providing active uses and attractive building facades along adjacent streets, parks and open spaces.
26Mr. Dror provided his opinion that this application will maintain the intent of the OP by also incorporating a commercial unit in the residential lobby on the street level, providing for an active use at grade.
27Policy 3.1.4(4)(b) states:
Mid-rise buildings will be designed to “maintain street proportion and open views of the sky from the public realm by stepping back building massing generally at a height equivalent to 80% of the adjacent right-of-way width”.
28Mr. Dror opined that this application would result in only minor penetration and that it would maintain the general intent as it maintains street proportion and open views of the sky from the public realm. The application calls for a narrow building with minimal sky view impacts. The Tribunal agrees with Mr. Dror’s opinion.
Do The Variances Maintain The General Intent And Purpose Of The Zoning By-Law (“ZBL”)?
29Based on the evidence of Mr. Dror and the exhibits presented at the Hearing, the Tribunal finds that each variance maintains the general intent and purpose of the ZBL.
30Mr. Dror provided evidence to the Tribunal that the ZBL had previously required a certain number of resident spaces and visitor spaces. For this application it would have been eight resident spaces and one visitor space that would need to be provided; however, Exception CR 2 states that these requirements do not apply if an alternative parking space rate requirement was applied to the site in a zoning by-law amendment enacted after December 31, 1994. Alternative parking requirements were introduced in 2022 through By-laws 89-2022 and 125-20202; therefore, Exception CR 2 is no longer relevant. Mr. Dror further opined that, and the Tribunal agrees, the present requirement is that zero resident spaces and two visitor spaces are to be provided. The Tribunal finds that the current application allows for one visitor space and no resident spaces, which maintains the general intent and purpose of the ZBL.
31The ZBL allows for a maximum permitted residential floor space index of 2 times the area of the lot (389.8 m2). The mixed-use building being proposed will have a residential floor space index equal to 3.62 times the area of the lot (705.5 m2). Mr. Dror opined that this increase is due to the increase of the proposed height. The height variance being for 2.19 m. The resulting density is a product of that built form, which, with only a 2 m increase, provides an appropriate transition to the Neighbourhoods to the north.
32Further, Mr. Dror opined that, with respect to residential density variance specifically, the ZBL contemplates a primarily residential building and that is what is being proposed. He continued by stating that the application will contribute to the creation of complete communities by providing a mixed-use building.
33Overall, the Tribunal agrees with Mr. Dror that the proposed application does maintain the general intent and purpose of the ZBL as what is being requested blends with the surrounding community, creates appropriate intensification and does not interfere with the use and enjoyment of the neighbouring properties.
Are The Variances Being Requested Minor In Nature?
34Whether a requested variance is minor or not is not a mathematical exercise; rather, it is more about the potential impact resulting from the variance being authorized. Based on the evidence of Mr. Dror and the exhibits presented at the Hearing, the Tribunal finds that the requested variances are minor in nature.
35Mr. Dror opined that the requested variances would not have any negative impact on the building or surrounding area. In the Traffic Report submitted with the application no negative impact was anticipated by reducing the amount of visitor parking spaces from two to one. Mr. Dror also provided evidence that shadow impact would be negligible due to the positioning of the Proposed Development and the surrounding neighbourhood.
36Given the proposed building’s location near a planned subway station, as well as being in proximity to multiple streetcar lines, Mr. Dror opined that this is a location where additional height and density is appropriate.
37Mr. Dror was also able to provide examples of variances that have been requested in the surrounding area that are similar to the ones being requested in this application.
38Concerning the setback variance being requested, Mr. Dror provided evidence that it is due to a private lane being present. If it had been a public lane, he opined no set back would be necessary as it would be as of right. His evidence was that whether the laneway is public or private is semantics and that there is no difference in actuality.
39Individually and collectively the proposed variances are minor in nature.
Are The Proposed Variances Desirable For The Appropriate Development Of The Land?
40Based on the evidence of Mr. Dror and the exhibits presented at the Hearing, the Tribunal finds that each variance is desirable for the appropriate development of the land.
41Mr. Dror opined that the proposed building is located in a transit-supportive location in a transit supportive form that optimizes the significant investment in the Ontario Line by increasing the housing supply near a subway station with minimal additional impacts. The Tribunal finds that this slight increase in density and dimensions the variances would allow is desirable due to this location.
42The retail space that will be created will provide for a small-scale commercial retail unit directly across the street from the future subway station. Mr. Dror opined that a retail unit in this location is desirable for not only residents of the neighbourhood, but also for the commuters who will utilize the subway station. The Tribunal agrees that this type of mixed residential/commercial development is a desirable use of land near a subway station.
PARTICIPANT STATEMENTS
43The Tribunal reviewed the Participant Statements prior to the Hearing, and Mr. Dror addressed each one in his evidence. The issues raised include storm water management, parking, increased traffic, and potential shadow impacts. Mr. Dror opined that many of the issues raised will be addressed during a detailed site plan analysis.
44There were also concerns raised over this Proposed Development becoming a “ghost hotel” or short-term rental style apartment and that the unit sizes being proposed are too small for a family. While those are real concerns that neighbours would have, they are not the subject matter of this appeal.
DECISION
45Based on the uncontested evidence of Mr. Dror and the exhibits filed for this Hearing, the Tribunal finds that the proposed variances, subject to the condition outlined in paragraph [3] above, have regard to the matters of provincial interest in s. 2 of the Planning Act, meet the general intent of the OP, are consistent with the PPS, conform to the GP, meet the general intent of the ZBL, are minor in nature and are desirable for the appropriate development or use of the land.
ORDER
46THE TRIBUNAL ORDERS THAT the appeal is allowed in part and the proposed 11, set out in paragraph [47] below, are authorized, subject to the following condition:
Where there is no existing street tree, the owner shall provide payment in lieu of planting of one street tree on the City road allowance abutting each of the sites involved in the application. The current cash-in-lieu payment is $583/tree.
47The authorized 11 variance are as follow:
Chapter 900.11.10 (2)(B)(ii)(iii), By-law 569-2013 - A minimum of two parking spaces for visitors is required to be provided on site. In this case, one accessible parking space will be provided on site.
Chapter 40.10.40.40.(1)(A), By-law 569-2013 - The maximum permitted floor space index is 2.5 times the area of the lot (487.25 m2). The mixed use building will have a floor space index equal to 3.94 times the area of the lot (768 m2).
Chapter 40.10.40.40.(1)(C), By-law 569-2013 - The maximum permitted residential floor space index is 2 times the area of the lot (389.8 m2). The mixed-use building will have a residential floor space index equal to 3.62 times the area of the lot (705.5 m2).
Chapter 200.15.1.(3), By-law 569-2013 - The entire length of an accessible parking space must be adjacent to a 1.5 metre (“m”) wide, accessible, barrier free aisle or path. The accessible parking space will not meet this requirement.
Chapter 40.10.40.10.(5), By-law 569-2013 - The minimum height of the first storey, measured between the floor of the first storey and the ceiling of the first storey, is 4.5 m. The height of the first storey will be 2.42 m.
Chapter 40.10.40.70.(2)(B)(i), By-law 569-2013 - The minimum required rear yard setback is 7.5 m. The mixed-use building will be located 0 m from the parking and second storey, and 3.9 m from the main building, from the rear (west) lot line.
Chapter 40.10.40.70.(2)(C), By-law 569-2013 - The minimum required setback from a lot line that is not adjacent to a street or lane, where there are windows or openings, is 5.5 m. The main wall will be located 0 m from the private lane on the side (south) lot line.
Chapter 40.10.40.70.(2)(E)(i), By-law 569-2013 - In the CR Zone, every building on a lot abutting an O, ON or OR zone, or the Residential Zone category or Residential Apartment Zone category, may not penetrate a 45-degree angular plane projected over a shallow lot along the entire required rear yard setback, starting at a height of 10.5 m above the average elevation of the ground along the rear lot line. The mixed-use building will penetrate the angular plane.
Chapter 40.10.40.70.(2)(G), By-law 569-2013 - The building must not penetrate a 45-degree angular plane equal to 80% of the width of the street right-of-way on which the lot fronts. The mixed-use building will penetrate the angular plane.
Chapter 40.10.40.10.(2)(A), By-law 569-2013 - The maximum permitted height of the building or structure on a lot subject to Development Standard Set 2(SS2) is 14 m, and the maximum permitted height for equipment and structures on the roof of the building used for the functional operation of the building is 5 m. The height of the mixed-use building will be 16.79 m. The height of equipment and structures on the roof used for the functional operation and rooftop amenity space will be an additional 4.4 m.
Chapter 40.10.40.60.(1)(C)(i), By-law 569-2013 - A platform or similar structure, attached to or less than 0.3 m from a building subject to Development Standard Set 2 (SS2), and attached to the front main wall with a floor level higher than the floor level of the first floor of the building must be located above the three storeys closest to established grade. The balconies along the front façade will be located at all storeys above grade, starting at the second storey.
“A. Sauve”
A. SAUVE
MEMBER
Ontario Land Tribunal
Website: www.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.