Regent Revival Inc. v. Toronto (City), 2024 CanLII 88925

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

September 03, 2024

CASE NO(S).:

OLT-23-000975

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

Applicant/Appellant:

Regent Revival Inc.

Subject:

Minor Variance

Description:

To permit the renovation and partial reconstruction of the existing theatre with a three-storey rear addition.

Reference Number:

A0185/23NY

Property Address:

551 Mount Pleasant Road

Municipality/UT:

North York/Toronto

OLT Case No:

OLT-23-000975

OLT Lead Case No:

OLT-23-000975

OLT Case Name:

Regent Revival Inc. v. Toronto (City)

PROCEEDING COMMENCED UNDER subsection 114(15) of the City of Toronto Act, 2006, S. O. 2006, c. 11 Sched A

Applicant/Appellant:

Regent Revival Inc.

Subject:

City of Toronto Site Plan Approval

Description:

To permit the renovation and partial reconstruction of the existing theatre with a three-storey rear addition.

Reference Number:

23 110086 NNY 15 SA

Property Address:

551 Mount Pleasant Road

Municipality/UT:

Toronto/Toronto

OLT Case No:

OLT-23-000901

OLT Lead Case No:

OLT-23-000975

Heard:

July 15-19, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

Regent Revival Inc. (“Applicant”)

David Bronskill

Mt. Pleasant Village Revival Residents Association (“MPVRRA”)

David Germain

City of Toronto

Jamie Dexter (Present only on July 17, 2024)

MEMORANDUM OF ORAL DECISION DELIVERED BY J. INNIS AND STEVEN MASTORAS ON JULY 19, 2024, AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal was heard as a de novo appeal during a five-day hearing, pursuant to s. 45(12) of the Planning Act (“Act”) resulting from a decision by the Committee of Adjustment (“CoA”) in the City of Toronto (“City”) refusing a series of minor variances that would permit the partial demolition, and permitting the construction of contemporary additions on the third storey and rear to accommodate a new live theatre space. The existing site is known as the Regent Theatre (“Regent”) and located at the municipal address known as 551 Mt. Pleasant Road (“Subject Property”).

2Regent Revival Inc. (“Applicant” / “Appellant”) have also submitted an appeal pursuant to s. 114(15) of the City of Toronto Act (“City Act”), related to a Site Plan Application (“SPA”) and this, along with the minor variance appeal (“MVA”) (together the “Appeals”) were previously consolidated by the Tribunal. There were previously two separate events before the Tribunal related to this matter, and the SPA was adjourned sine die. The Tribunal was tasked with determining whether the Proposal satisfies the requisite Provincial legislative framework, and all the statutory tests for the requested variances, as well as, establishing the legal non-conforming (“LNC”) status of the Subject Property.

3One of the primary issues was balancing the broader public interest with the concerns of the immediate surrounding community. As a cultural landmark within the City, the Panel concluded that the Regent has effectively maintained its use as a theatre for nearly a century and was satisfied that all applicable legislative requirements and guidelines were fulfilled.

4For reasons that follow as set out in this Decision, the Tribunal allowed the MVA with conditions, and ordered that the SPA remain adjourned sine die, allowing this detailed process to evolve further between the Applicant and the City.

5The Subject Property is in an area that is currently undergoing substantial transition given its proximity to multiple major transit station areas (“MTSAs”) and higher order transit. Allowing the MVA as proposed will support and achieve complete communities through the rehabilitation of the Regent, as a historic cultural heritage resource, and is in accordance with the principles of good planning and in the public interest.

LEGISLATIVE FRAMEWORK

6An Appeal pursuant to s. 45(1) of the Act is a hearing de novo. The Appellant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested Variances:

a. Maintain the general intent and purpose of the Official Plan (“OP”);

b. Maintain the general intent and purpose of the Zoning By-law (“ZBL");

c. Are desirable for the appropriate development or use of the land, building or structure; and,

d. Are minor in nature.

7The relevant section of the Act pertaining to the status of the LNC use is referenced below:

Subsection 45 (2) In addition to its powers under subsection (1), the committee, upon any such application,

(a) where any land, building or structure, on the day the by-law was passed, was lawfully used for a purpose prohibited by the by-law, may permit,

(i) the enlargement or extension of the building or structure, if the use that was made of the building or structure on the day the by-law was passed, or a use permitted under subclause (ii) continued until the date of the application to the committee, but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by-law was passed, or

(ii) the use of such land, building or structure for a purpose that, in the opinion of the committee, is similar to the purpose for which it was used on the day the by-law was passed or is more compatible with the uses permitted by the by-law than the purpose for which it was used on the day the by-law was passed, if the use for a purpose prohibited by the by-law or another use for a purpose previously permitted by the committee continued until the date of the application to the committee;

8In addition, s. 3(5) of the Act requires the Tribunal’s Decision to be consistent with the Provincial Policy Statement 2020 (“PPS”) and A Place To Grow: Growth Plan for the Greater Golden Horseshoe Growth Plan (“GP”). The Tribunal must also have regard to the matters of Provincial interest as set out in s. 2 of the Act, as well as for the decision of the CoA and the information considered while making its decision, as set out in s. 2.1(1) of the Act.

9The Tribunal must also decide whether the proposed LNC and minor variances (“Variances”), along with any required conditions, are representative of good planning and are in the public interest.

EXHIBIT LIST

10The Panel was provided the following Exhibits in its consideration of the matter:

1. Joint Document Book (Volumes 1-4), Dated July 8, 2024.

2. Applicant-Final Witness Statements (Paton/Spaziani/Jamieson-Consolidated)

3. Applicant-Reply Witness Statements (Paton/Jamieson-Consolidated)

4. Will Say Statement of Megan Albinger

5. Witness Statement - David Hirsh

6. Witness Statement - Daniel Cowling

7. Witness Statement - Franco Romano

8. Reply Witness Statement - Daniel Cowling

9. Reply Witness Statement - Franco Romano

10. Visual Evidence - David Hirsh

11. Visual Evidence - Applicant

12. Annotated Elevation Angular Planes Visual

13. Megan Albinger - Acknowledgement of Experts Duty and Curriculum Vitae

14. Hadley Road Streetscape Visuals (Replacement of Pages 5,6, and 8 In Original Visuals)

15. City Of Toronto Sun Shadow Terms of Reference

16. Book Of Authority - Applicant

17. Book Of Authority - MPVRRA

SUBJECT PROPERTY and SURROUNDING AREA

11The Subject Property is located on the east side of Mt. Pleasant Road, north of Belsize Drive and south of Manor Road East. As a through lot, the Subject Property maintains a frontage of 17.24 metres (“m”) along Mt. Pleasant Road and a rear lot frontage of 19.74 m on Hadley Road. It is generally rectangular in shape and is approximately 1,352.6 square metres (“m²”) in its current built form.

12At the rear of the Subject Property along Hadley Road there is an existing power transformer, and the remainder of the land currently exists as a gravel-surfaced parking/loading area for the Regent’s exclusive use.

13A public laneway (“laneway”) with a width of 4.27 m runs north south, in a perpendicular manner from Manor Road East, and then turns directly east in a 90-degree manner, with a reduced width of 3 m connecting with Hadley Road. This laneway was established in 1928, allowing for right-of-way (“ROW”) access servicing businesses along Mt. Pleasant Road and providing rear-yard access for neighbouring residents along Hadley Road.

14The City Official Plan (“OP”) designates the westerly portion of the Subject Property as Mixed Use Areas, and the easterly portion is designated as Neighbourhoods. The zoning for the westerly portion is Commercial Residential (“CR”), exception 531 (note: By-law No. 595-2022 is currently under appeal, the exception that applied immediately prior to the adoption of By-law No. 595-2022 was CR x2302, which applies to this Application). Zoning for the Neighbourhoods easterly portion of the Subject Property is Residential (“R”), exception 148.

15The Subject Property is guided by the Yonge-Eglinton Secondary Plan (“YESP”) and is located within the City’s Davisville Village Neighbourhood (“DVN”) and is unique as a through lot with frontage on Mt. Pleasant Road, which is classified by the City as a two-way Major Arterial Road, and a local street, thus having a split designation.

16Along Mt. Pleasant Road, the Regent is flanked by two ground floor retail/commercial units with a dominant two-storey street wall within its current built form context. The YESP allows for a minimum height of three storeys to a maximum of eight storeys. Examples of the range of heights along Mt. Pleasant Road include, but are not limited to 577 Mt. Pleasant Road, with an extended height set back from the street wall.

17The old Mount Pleasant Theatre is located on the east side, approximately 300 m to the north of the Subject Property and maintains a similar built form and height as the Regent but differs in that it is not a through lot, that is zoned as CR within the Mixed Uses Areas designation within the OP. A Toronto Public Library branch is also located on the east side at 599 Mt. Pleasant Road.

18Immediately to the south of the of the Subject Property (429 Mt. Pleasant Road Belsize Drive), is the Mt. Pleasant Baptist Church with a large, partial building mass of three storeys, extending to a two-storey structure at the full length of the property, which immediately abuts the residential property driveway at 203 Belsize Drive. Further to the east of the Church, is a licensed childcare/day care facility offering daily services with approximately 75 spaces, with operating hours between 7:30 a.m. to 6:30 p.m., permitting drop-off and pick-up directly in front of the facility, along Belsize Drive.

19To the south of the Subject Property, buildings along Mt. Pleasant Road are comprised of two to three-storey mixed-use built forms with at-grade retail or commercial uses and residential or office units above. South of Millwood Road, at 501 Mt. Pleasant Road, there is a four-storey walk-up apartment block, and an office building located at 477 Mt. Pleasant Road with a height of five storeys, and a lot depth of 75 m.

20Similarly, to the north of the Subject Property along the east side of Mt. Pleasant Road properties consist of a variety of older and newly constructed two to three-storey buildings. Perhaps the most significant density exists at the northwest corner of Mt. Pleasant Road and Manor Road East, with a height of eight storeys consisting of a mixed-use condominium building, with a below grade Municipal parking lot.

21To the east of Mt. Pleasant, along Hadley Road, the residential built forms range from bungalows to three-storey detached homes, that mostly comply with a maximum height of 10 m, with a reduced roof mass based on the R zone criteria. The lot frontages along Hadley Road range between 7-8 m and are typically approximately one-fifth the size of the Subject Property.

22While not part of this application, information was provided to the Panel, that the Applicant also owns the lot immediately north of the Subject Property at 22 Hadley Road, and also owns 174, 176, 178, 180 and 182 Belsize Drive.

23The current ROW width of Mt. Pleasant Road is 27 m, and in the area of the Subject Property, the roadway widens to four lanes, allowing north-south traffic flows, with on-street metered parking permitted on both the east and west sides, during non-rush-hour periods in the morning and afternoon.

THE PROPOSAL

24The Subject Property has a total lot area of 1,352.5 m² comprised of 604.3 m² in the CR zone and 749.3 m² within the R zone. The existing Gross Floor Area (“GFA”) for the Regent combined between the CR zone (1,156 m²) and the R Zone (750 m²) is 1,816 m². The proposed total GFA is a combined 3,885 m², with an increase of GFA in both the CR Zone by 547 m² and in the R Zone by 1,432 m² (“Proposal”).

25The Proposal will facilitate the modernization and rehabilitation of the Regent with a total seating capacity of 645 persons. Previously, the historical range of seating capacity has been 554 to 847 persons depending on the nature of the assembly. The Proposal also intends to utilize a Gala seating system (a folding seating system, that can create a level floor plate on the main level) with an upgrade to the interior layout of the building. It will accommodate the spatial and technological needs to accommodate modern and accessible live theatrical productions, including audio-visual equipment, lighting, greenrooms, and rehearsal/community space. On the second floor of the rear addition, a rehearsal and community space are also part of the Proposal, that will be made available to Community groups who will have an opportunity to utilize the space free of charge, or at below market rates.

26The front yard setback along Mt. Pleasant Road and the side yard setback on the north side of the Regent will continue to remain at 0 m. The existing side yard setback along the south side of the building is 0 m within the CR zone and 2.36 m in the R zone. The proposed side yard setback for the Proposal would remain at 0 m along the south side of the building in the CR zone and would see a reduction to 1.19 m in the R zone to the secondary entrance vestibule, and then at 2.85 m for the remainder. The existing rear yard setback on Hadley Road is currently 23.63 m and the Proposal’s rear yard setback would be 5.6 m for a 1 m-wide wall, and 6.985 m for the remainder of the building.

27Theatre guests will continue to access the Regent through the main entrance along Mt. Pleasant Road. The at-grade emergency exit and external fire escape stairs will generally remain within a similar location along the southern wall of the building and is expected to be used for emergency exit purposes only.

28The rear design of the Proposal, fronting along Hadley Road, allows for the third-storey extension of 18.26 m, accommodating mechanical and electrical floor area/storage and access to the catwalk. A component of the design specifies a sloped roof (at 45 degrees), commencing 3 m east of the rear addition at 16 m in height, transitioning to the corners of the roof at their lowest points located at an approximate height of 10.2 m.

29Furthermore, the Proposal contemplates that the SPA process will provide for an additional opportunity for a more detailed review by City staff in assessing to other issues, including but not limited to:

• service entrances for employees and users of the community space (while performances are occurring);

• two secondary entrances proposed at the rear addition, to be accessed from Hadley Road;

• the proposed loading area and waste disposal at the rear of the building with access provided via Hadley Road; and,

• any other relevant issues related to the SPA.

30For ease of reference, the following chart generally represents a statistical summary of the Proposal (Exhibit 2, Tab 1):

CR Zone

R Zone

Total

Lot Area

604.3 m2

748.3 m2

1,352.6 m2

Building Height Existing Proposed

16.0 m 16.0 m

16.0 m 16.0 m

Gross Floor Area1 Existing Total Proposed

1,156 m2 1,703 m2

750 m2 2,182 m2

1,816 m2 3,885 m2

Front Yard Setback Mount Pleasant Road Existing Proposed

0 m 0 m

N/A N/A

Rear Yard Setback Hadley Road Existing Proposed

N/A N/A

23.63 m 5.6 m for 1 m-wide wall and 6.985 m for remainder of building

Side Yard Setback Existing - North Proposed – North Existing – South Proposed - South

0 m 0 m 0 m 0 m

0 m 0 m 2.36 m 1.19 m to service/secondary entrance vestibule and 2.85 m for remainder

1 As per the Zoning By-law, exit stairs, elevator shafts, and basement mechanical/storage rooms are deducted from the calculation of GFA within the portion of the building within the CR zone. There are no deductions to GFA for the portion of the building within the R Zone.

THE VARIANCES

31The requested Variances to the Zoning By-law are as follows:

1. Chapter 900.11.10, Exception CR 531, (C) By-law 569-2013: These premises must comply with Regulation 900.11.10(732) (A): The lands, or a portion thereof as noted below, are subject to the following Site Specific Provisions, Prevailing By-laws and Prevailing Sections: Up to a height of 7.5m, at least 75% of the main wall of the building facing a lot line abutting Mount Pleasant Road must be between 0.0m and 0.5m from the required front yard setback, and all of the main wall of the building facing a lot line abutting Mount Pleasant Road must be between 0.0m and 5.5m from the front lot line or required front yard setback. The proposed front yard setback projects over the lot line, and the upper portion of the building fronting on Mount Pleasant is 13.35m away from the front lot line.

2. Chapter 10.10.40.70 (3) (C)(iii), By-law 569-2013: The required minimum side yard setback for a non-residential building is 7.5m. The proposed side yard setback is 0m to the North side lot line.

3. Chapter 10.10.40.70 (3) (C)(iii), By-law 569-2013: The required minimum side yard setback for a non-residential building is 7.5m. The proposed side yard setback is 1.19 m to the South side lot line.

4. Chapter 10.10.40.10 (1) (A), By-law 569-2013: The permitted maximum height of a building or structure is 10m. The proposed height of the building/structure is 16m.

5. Chapter 10.10.40.40 (1) (A), By-law 569-2013: The permitted maximum floor space index is 0.6 times the area of the lot. The proposed floor space index is 2.92 times the area of the lot.

6. 40.10.40.40(1)(B), By-law 569-2013: The permitted maximum floor space index for non-residential uses on the lot is 2 times the lot area. The proposed non-residential floor space is 2.82 times the lot area.

7. Chapter 10.5.40.60 (3) (A) (iii), By-law 569-2013: Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6m. The proposed stairs are 0m from the west lot line.

8. Chapter 10.5.40.60 (3) (A) (iii), By-law 569-2013: Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6m. The proposed stairs are 0.0 m from the south lot line.

9. Chapter 10.10.40.70 (2), By-law 569-2013: The required minimum rear yard setback is 7.5m. The proposed rear yard setback is 5.6 m.

10. Chapter 40.10.20.100 (1), By-law 569-201: The total interior floor area of Entertainment places of assembly uses on a lot within 6.1m of a lot in the Residential Zone category on a lot which is subject to Development Standard Set 1 (SS1) or Development Standard Set 2 (SS2) may not exceed 400m2. The proposed total interior floor area is 1,703.25 m2.

11. Chapter 40.10.40.70 (2) (E) (i), By-law 569-201: If a lot abuts an O, ON or CR zone or the Residential Zone category or Residential Apartment Zone category, then every building on the lot in the CR Zone 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 10.5m above the average elevation of the ground along the rear lot line. The proposed building penetrates the angular plane.

12. Chapter 900.10.11(2302): Prevailing By-laws and Prevailing Sections (C) - Section 12(2) 119 C) of former City of Toronto By-law 438-86 A building is not permitted to encroach within a 60 degree angular plane constructed over the lot from the lot line facing an R district and from a line 10.0 metres from the lot line facing a public highway. The angular plane falls within the proposed building.

13. Chapter 40.10.50.10 (3), By-law 569-2013: If a lot abuts a lot in the Residential Zone category or Residential Apartment Zone category, a minimum 1.5m wide strip of land used only for soft landscaping must be provided along the part of the lot line abutting the lot in the Residential Zone category or Residential Apartment Zone category. The proposed soft landscaping strip is 0m wide.

14. Chapter 40.10.40.70 (2)(C): Where the main wall of a building has windows or openings, the main wall must be setback at least 5.5m from a side lot line that is not adjacent to a street or lane. The proposed third storey main wall (glazing) is setback 0m from the north lot line. Note: referring to the CR portion of the lot.

15. Chapter 40.10.40.70 (2)(C), By-law 569-2013: Where the main wall of a building has windows or openings, the main wall must be setback at least 5.5m from a side lot line that is not adjacent to a street or lane. The proposed third storey main wall (glazing) is setback 0m from the north lot line. Note: referring to the CR portion of the lot.

16. Chapter 10.5.40.60.(2)(B)(ii), By-law 569-2013: A canopy, awning or similar structure not covering a platform may encroach in a side yard, a maximum of 1.5 metres, if it is no closer to the side lot line than 0.3 metres. The proposed canopy is 0 metres from the South lot line.

17. 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 metres. The proposed height of the first storey is 3.07 metres.

PRELIMINARY MATTERS

32The MPVRRA was formed in May 2023, and is comprised of approximately 100 residents who reside within proximity to the Regent. The Association’s primary function is to provide its membership with an opportunity to provide input, or to raise concerns and objections to this and any future Proposals in the area. The Tribunal notes that five Hadley Road residents appeared at the CoA, in opposition to the matter and following the Appeal of the CoA decision, the MPVRRA was incorporated and granted Party status by the Tribunal at a previous event.

33The Tribunal allowed testimony from a total of five expert witnesses who provided opinion evidence in their respective areas of expertise. Additionally, one neighbouring Resident/MPVRRA-Director, and a Heritage Planner from the City provided their testimony, and are identified below:

For the Applicant:

• Ashley Paton - Land Use Planning

• Michael Spaziani - Urban Design And Architecture

• Mark Jamieson - Transportation Planning And Traffic Engineering

For the MPVRRA:

• Frank Romano - Land Use Planning

• Daniel Cowling - Urban Design And Architecture

• Megan Albinger – City of Toronto Heritage Planner (under Summons)

• David Hirsh (Hadley Road Resident since 1988 and Director of the MPVRRA).

34Counsel for the MPVRRA raised a concern about the lack of proper notice for the CoA Hearing, suggesting that no Variances were sought pursuant to s. 45(1) of the Act, primarily because the initial Application did not specifically identify s. 45(1). Counsel for the Applicant submitted that the application form and covering letter submitted to the CoA in March 2023 implicitly references both requests under s. 45(2) of the Act, and relief from performance standards through a Minor Variance Application. Regardless, Counsel for the Applicant submitted that the Application was appropriately submitted as it is required that an appeal be submitted under s. 45 of the Act.

35The Panel determined that the Application and Appeal did seek relief through Variances under s. 45(1) by concurring with the Applicant that proper notice was provided; that both s. 45(1) and s. 45 (2) were within the Application before the CoA and in their decision; and that the Appeal is properly before the Tribunal pursuant to the above noted sections.

GENERAL EVIDENCE AND FINDINGS

Heritage Matters

36Ms. Albinger authored the report titled “551 Mount Pleasant - Notice of Intention to Designate a Property under Part IV, Section 29 of the Ontario Heritage Act” (“Heritage Report”) dated August 31, 2022 (Exhibit 1, Tab 50, pg. 94). Ms. Albinger provided testimony citing information contained within her Heritage Report, and although she was not qualified by the Tribunal to provide expert opinion evidence on Heritage matters, she did assist the Panel in outlining details around the Subject Property’s historical timeline, architectural alterations, including relevant facts related to ownership of the property and operation of the Theatre. Counsel for the City was present for her testimony.

37The Subject Property is designated under Part IV of the Ontario Heritage Act. The Theatre was legally constructed in 1927 operating as the Belsize Theatre, then known as the Crest Theatre from 1954 to 1966, and more recently known as the Regent Theatre since 1988. The building underwent renovations in both the 1950’s and the 1980’s with seating capacities for the Theatre ranging between 554 and 847 seats historically.

38On July 19, 2023, an application to alter a designated Heritage property on the Subject Property, along with its accompanying Heritage Impact Assessment (“HIA”) was considered and subsequently approved by the City, to permit the proposed alterations. City Council authorized a Heritage Easement Agreement with the Applicant under s. 37 of the Ontario Heritage Act. Prior to final SPA approval, and the issuance of a Building Permit the Applicant must satisfy the City, in accordance with the following conditions:

a. provide evidence of conformity with the Zoning By-law;

b. provide a Conservation Plan, a Heritage Lighting Plan, a Signage Plan;

c. enter into a Heritage Easement Agreement; and

d. provide a Letter of Credit to secure all work included in the approved Conservation Plan.

39In summary, the Proposal retains the Regent’s front facing façade along Mt. Pleasant Road, conserving its two-storey massing and Edwardian Classical three-bay windows. The requested height variance (to permit the construction of the third-storey addition) affects Heritage attributes described in Schedule B of the Designation By-law 8-2023 (Exhibit 1, Tab 53) including the scale, form, and massing of the property. The City’s Heritage Planning staff requested that prior to any approval, the Proposal should be made subject to a condition requiring final building permit drawings to be to the satisfaction of the Senior Manager, Heritage Planning. This condition would give staff the opportunity to review the final building permit drawings to ensure that they are consistent with, and conform to, the applicable Heritage Policy Framework.

40The Third storey addition, totalling 547 m², has a glazed design element and proposes to step back 1.7 m from the principle front elevation. Further step backs from the principal façade are proposed at approximately 7 m and 15 m. (Exhibit 4, para. 56), as shown in the drawings prepared by Hariri Pontarini Architects & NORR Architects and Engineering Ltd., dated March 22, 2023.

41The image below depicts the Proposal’s architectural significance with the elevation/illustration reflecting the front of the Subject Property’s Heritage façade and restorative elements with the third floor setback and partially glazed addition:

Findings Regarding Heritage

42After careful consideration of Heritage elements associated with the Proposal, noting the City’s conditions in paragraph [38] above, and that the final design is consistent with, and conforms to, the applicable Heritage Policy Framework, the Tribunal finds that appropriate regard exists from an Ontario Heritage Act perspective.

Legal Non-Conforming (“LNC”) Use

43Counsel for both of the Parties submitted that there was no dispute that the original Theatre was legally constructed in 1927 for cinema and live theatre uses, which included a stage for live performances, originally known as the Belsize Theatre (part of the Famous Players Chain of motion picture theatres). As the Hearing advanced, Parties further concluded that the point of crystallization for the LNC use was in 1952, when the east side of the Subject Property was zoned R2 for residential uses.

44Through Ms. Albinger’s testimony, evidence was provided that the Theatre underwent renovations in 1950-1951 and again in 1953 and reopened as the Crest Theatre. The Crest Theatre Company operated until 1966 and is renowned as a hub for live performance theatre that established a generation of exceptional Canadian artists. In 1985 the Theatre underwent renovations again and was home to the one production, “The Little Shop of Horrors”. In 1988 the building was leased by Famous Players Canada and reopened as the Regent Theatre, showing cinema. City records from the City’s Building Department showed permits issued between 1927 and 1988 for the use of the Regent for cinema and live theatre.

45Ms. Paton’s testimony reconfirmed the previous framework requirement pursuant to s. 45 (2) (ii) of the Act allowing for the expansion of the existing use in building, and that her opinion is that the theatrical use, represents a similar facility use to that of cinema productions.

46The Applicant also provided evidence demonstrating the continuous LNC uses beyond the agreed upon date of crystallization, based on the following:

• Affidavit from Ms. Sorokolit-Burke (Exhibit 2, Tab E);

• The Cultural Heritage Impact Assessment;

• Archived material from the Regent’s website;

• The Regent Theatre Toronto Facebook page;

• Eventbrite event details (Nunsense- the Musical Comedy March 2019);

• Blog post/photos (LA NEIGE Musical April 2019); and

• Ms. Albinger’s Will Say (Exhibit 4) and her testimony.

47Ms. Sorokolit-Burke’s Affidavit provided evidence of her knowledge of the uses of the Subject Property from March 15, 1976, to January 18, 2022, with her Father as the owner/proprietor during that period of time. Having been unavailable to testify at the Hearing, there was no opportunity for cross examination. Nonetheless, the Tribunal had the benefit, of historical information from a period of time in which limited information was available, and there was no evidence submitted at the Hearing that contradicted its veracity.

48Ms. Paton asserted that the issuance of building permits by the City demonstrated the City’s confirmation of the Regent’s continued LNC use for both cinema and live theatre. Further, the By-law defined the use of the Subject Property as a Place of Amusement for cinema and live theatre in 1952 and Ms. Paton opined, that since the building’s inception, it has been used for ‘theatre’, both cinema and live theatre as a ‘Place of Amusement’.

49Ms. Paton provided testimony that the building’s use on the Subject Property was defined in the By-law No. 18642, as a Place of Amusement:

93. "place of amusement'' includes a motion picture or other theatre, arena, auditorium, public dance hall, public hall ( including premises for wedding receptions, banquets and other social gatherings), music hall, amusement pier or wharf, arcade show or penny arcade, billiard or pool room, bowling alley, carnival show, circus, exhibition, golf driving tee, archery range, ice or roller skating rink, motordrome, menagerie, merry-go-round, miniature or switchback railway, roller coaster or other mechanical ride or device, miniature golf course, shooting gallery, game of skill, trained animal show, travelling show, wild west show, race track for horses or for dogs: (Cl)

50Ms. Paton also provided testimony that the building’s use on the Subject Property was defined in a more recent By-law No. 569-2013, as a Place of Assembly:

means premises used to provide entertainment, such as a theatre, cinema, opera, concert hall or ballet. An adult entertainment use, an eating establishment, a cabaret, or a nightclub is not an entertainment place of assembly.

51Counsel for the Applicant submitted that the concept of a LNC use is established in s 34(9)(a) of the Act and states:

(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; […]

52Furthermore, in Feather v. Bradford West Gwillimbury (Town) (2010) it was cited that in order to prove a LNC use, a party must prove that: “a. the use of the land, building or structure was lawful at the time of the enactment of the relevant zoning restriction; and b. the previously lawful use has continued thereafter.”

53Based on the above evidence and jurisprudence in similar matters, the historical timelines and uses, along with Ms. Paton’s testimony, counsel for the Applicant submitted that the Application meets the requirements of s. 34(9)(a), and that the use was lawful at the time of crystallization and was maintained thereafter.

54Mr. Romano opined that the proposed expansion of the existing building on the Subject Property does not meet the requirements of s. 45(2)(a), as it is not desirable for the appropriate use of the land for the following reasons: the intensive commercial use extends fully into a residential area; the commercial use and the physical proposed development is not compatible with surrounding residential area; and the commercial use, along with the scale and size of the proposed development will result in adverse impacts to the surrounding area.

55Testimony from Ms. Albinger stated live theatre continued until 1966, when the Theatre was renovated “to make the building suitable for showing films”. It was the opinion of Mr. Romano that there was no evidence from any source that the live theatre use, or the intention of said use, continued to exist at the Subject Property from 1966 to 1976. Therefore, the use of the Subject Property for live theatre was not continuous and would constitute the loss of its LNC status for such a use.

Findings Regarding the LNC and Expansion of Use

56The Panel acknowledges that providing continuous proof of a use for almost a century may be challenging, however, based on the evidence submitted, and with reference to Exhibit 1 (Volume 3), the Panel agrees that the continuous use of the Subject Property as a ‘theatre’ is evident. Since inception, a live theatre space has lawfully existed in the building. Additionally, the prominent use between cinema and live theatre may have alternated throughout its existence, but it is evident that both uses were existing and the cumulative ‘Theatre’ use has been consistent and has been maintained under a “Place of Assembly”. Based on all of the evidence and submissions, the Panel is persuaded by the Applicant’s analysis that the Subject Property satisfies the necessary requirements in determining the legitimacy of its LNC use as a live theatre. The Tribunal finds that the Proposal’s extension of this use through its expansion of the building satisfies the statutory requirements.

TRANSPORTATION EVIDENCE

Traffic, Parking and Transit

57Mr. Jamieson’s Witness Statement (Exhibit 2, Tab 3) and oral testimony focussed on a number of areas that were predominantly concerns raised from Hadley Road residents and Participant Statements. At a high level, Mr. Jamieson’s testimony effectively demonstrated that the traffic and parking impacts of the Application are expected to have a minimal impact compared to what is currently permitted at the Subject Property and generally “represents good practice from a transportation planning perspective and satisfies the test for a minor variance”. Mr. Jamieson testified that the collective concerns from a number of neighbouring residents have been properly evaluated and include, but are not limited to the following:

a) Rear access concerns relating to deliveries, waste collection, production staffing, and cast member activity, and other future adverse impacts from these activities that may potentially impact the local residential street. The Proposal’s provision for rehearsal/community space, dressing rooms, delivery and garbage areas and ancillary food services, in Mr. Jamieson’s opinion “are not anticipated to increase the Subject Site’s peak hour trips”. Private waste collection will continue to be curbside picked up on Hadley Road, with the use of tote bins that are stored internally at the Regent and wheeled out for collection only;

b) Specifically, he asserted that the Proposal should not have any additional adverse impact based on his analysis with the nominally permitted increase in capacity of the existing venue;

c) Current activity is effectively diminished, primarily as a result of periods of inactivity from closures and restrictions due to COVID-19 measures, coupled with a change in ownership and the Application process that has followed with this Proposal. He asserted however, that with the expectation of a revitalized venue, the Proposal still will not represent a significant variance from what previously existed with the Regent’s operation as both a Theatre and Cinema presentation space;

d) Regarding Parking provisions, Mr. Jamieson opined that there are 120 below-grade structured Municipal parking spaces, located within two public parking garages and approximately 1,190 on-street metered parking spaces within a 500 m radius of the Subject Property. He further stated, and very importantly noted that under the current City Consolidated Zoning By-law, no new or additional parking spaces are required for this Proposal, and that all businesses along Mt. Pleasant Road are subject to the same provisions;

e) Regarding Transit alternatives, Mr. Jamieson outlined that several TTC Bus routes currently exist, in addition to the Mt. Pleasant Crosstown, Eglinton and Davisville Subway Stations, which all serve the Subject Property, given its proximity to these very prominent MTSAs. Furthermore, he opined that there are numerous cycling routes both on-and-off street, that include the Kay Gardner Beltline Trail, further south of the Subject Property, consisting of a 9-kilometre multi-use trail that extends from just east of Mt. Pleasant Road across to Allen Road;

f) He also opined that with the modernization of the Regent, fewer deliveries would be anticipated resulting from the Applicant’s intention to operate with multi-week productions, minimizing the frequency and volume of deliveries for productions expected; and,

g) Finally, he asserted that through the SPA process, the Applicant understands there may be a need for appropriate restrictions, as identified through the City’s oversight, and possibly be implemented at specific times, with on-site staff coordination during deliveries, focussed on pedestrian and vehicular safety best practices. As well, he acknowledged that the City could choose to make any necessary or appropriate on-street parking regulations that it may deem appropriate following its normal community consultation process.

Findings Regarding Transportation Evidence

58Mr. Jaimeson provided uncontroverted expert evidence that the Regent is situated in an urban area with easy access to high-order transit, surface transit and a well-connected pedestrian/cycling network. The Panel was persuaded by the Witness Statement and oral testimony, and finds that concerns related to traffic, parking and transit access are not issues that would represent any new adverse impacts on the neighbouring community.

59His testimony that the proposed strategy to facilitate deliveries, waste collection, and the loading of production sets, through the enclosed storage and oversized parking space is appropriate and reasonable, ultimately impacting the residential neighbours in a manner that is mitigatable, through the SPA process, and is deemed minor in nature.

60Furthermore, the Proposal also conforms with existing parking standards in accordance with the City’s Zoning By-law, and the Tribunal finds that there is substantial on-and-off-street parking within the immediate area to accommodate the Proposal. Theatre patrons and employees will continue to benefit from the use of existing public parking provisions, with easy access to transit and pedestrian/cycling alternatives.

61Therefore, the Panel accepts the uncontroverted expert opinion evidence of Mr. Jaimeson that the transportation impacts, including parking and the continued service use of Hadley Road for certain deliveries, waste collection and other purposes, as part of the Proposal, are minor in nature. The Panel further concludes that many of the concerns raised through this robust public process will be appropriately addressed through the very detailed SPA analysis.

PLANNING EVIDENCE

62Ms. Paton provided a comprehensive general overview, having had carriage of the matter, since May 2024, and broadly testified that the Proposal meets the requisite legislative framework, represents good planning, and is in the public interest. She also provided a historical element to her overview, noting the original Proposal was deemed complete in November 2022. She further emphasized that the venue through its varied ownership, has been used as a live theatre and movie theatre since its construction in 1927, noting that any temporary interruptions were just that.

63Ms. Paton opined with respect to numerous issues that can be readily reviewed through her Witness Statement (Exhibit 2, Tab 1) and the Panel has generally summarized that the Proposal:

1. Has appropriate regard for s. 2 of the Act;

2. Is consistent with the PPS;

3. Conforms to the City OP and the YESP;

4. Has requested Variances, that individually and collectively, meet the ‘four tests’ for a minor variance under s. 45(1) and the criteria for applications to expand LNC use under s. 45(2) of the Act;

5. Demonstrates new capacity projections that are, more or less, the same as what has historically existed;

6. Maintains the Cultural Heritage, and Heritage attributes of the Subject Property which will be preserved/conserved, and will allow for a significant economic investment towards a history-rich cultural and performing arts venue, promoting Canadian productions and local Arts talent, in close proximity to high-order public transit;

7. Reflects that no parking spaces are required in accordance with the City Zoning By-law; and,

8. Allows for the SPA process to evolve as an appropriate next step, which can and should address issues of concern to neighbouring residents along Hadley Road;

Architecture and Urban Design

64On behalf of the Applicant, Mr. Spaziani share his opinions that the Proposal achieves a high quality in its architectural and urban design, both within the existing and planned context for the following reasons (Exhibit 2, Tab 2):

• Maintains and revives a valuable historic cultural asset contributing to a complete community;

• Improves the functionality of the Theatre with necessary back-of-house services that can support a wider range of performance, entertainment, and community support functions;

• Animates the Mount Pleasant Road public realm with an active and restored Heritage façade;

• Adds an accessible bright contemporary third floor “crush space” supporting the mezzanine seating area with convenient and accessible washroom facilities;

• Introduces an elevator providing barrier-free access to all floors of the Theatre;

• Provides a compatible built-form face to Hadley Road at a scale that is similar to recent residential policy intentions for expanded housing options which include fourplex forms;

• Provides a gable end and sloped roof form along Hadley Road that echoes the prevailing house form scale and character;

• Establishes a slightly increased height that transitions from the prevailing Neighbourhoods heights to the expected increased heights in the Mixed Use area where three up to eight storeys is directed through the Secondary Plan;

• Creates a well landscaped Public Realm improvement along Hadley Road with the east façade set back to closely match the existing prevailing house setbacks, replacing an incompatible surface parking lot that exists on the site today;

• Offers community access to activity space on the second floor in support of community initiatives such as meetings, presentations, youth cultural programming and other support functions; and,

• Adds another cherished community amenity in a form that is familiar in the district where assembly uses require increased building mass as a functional necessity. These uses include churches, schools, other theatres, and office buildings that contribute to a complete walkable community environment.

65Mr. Spaziani provided evidence that the easterly extension of the building does constitute an increase in perceived mass within the R designated portion of the Subject Property but in his opinion does not create “undue negative impacts on the stable Neighbourhoods context.” He asserted that the existing building has a FSI of 1.34 with a maximum density allowed in the R zone of 0.6, and the proposed development will see a FSI of 2.92. Mr. Spaziani expressed that from an urban design perspective, density numbers alone are not a reliable indicator of the visual impact, and he believes that the physical scale and mass are more accurate measures of compatible fit.

66The maximum height for the R zone is 10 m, measured from the established grade. The witnesses agreed that the grade differential from Mt. Pleasant Road to Hadley Road is approximately 2.5 m lower than at-grade along Mt. Pleasant. Using the established grade of 159.4 m at Mt. Pleasant Road, the east facing masonry wall would be 10.19 m at the eave to 15.2 m at the peak; and the north and south facing walls would be 10.19 m at the eave to 16 m at the peak. Mr. Spaziani opined that the “use of a sloped roof that descends from west to east responds to prevailing roof shapes and heights in the immediate context and effectively reduces the perceived height of the mass within the R zoned lands”.

67Mr. Spaziani also testified that the proposed third floor addition at the front of the Subject Property along Mt. Pleasant Road, includes two step backs that preserve the Mt. Pleasant Road prevailing existing heights, while respecting a minimum height requirement of three storeys in the YESP.

68Regarding shadowing from the Proposal, Mr. Cowling asserted that the height would negatively increase the shadowing on neighbouring properties, along Hadley Road. Mr. Spaziani indicated that the wall on the north side with a height of 16 m in the Proposal, will create an increase in shadow on the residential properties to the north. However, in his opinion the increase is minor in nature, and does not limit the use of the affected rear yards. He also noted that the yard immediately adjacent to the Subject Property (24 Hadley Road), is already subject to existing shadows from fencing and trees and noted that it is owned by the Applicant.

69Mr. Cowling further opined that a proposed rear building height of 1.5 times higher than a typical building height on Hadley Road was an over-development. Furthermore, the Proposal’s width at more than 2.5 times wider than a typical building frontage onto Hadley Road, was excessive as it related to the existing context of the R zone and would dominate the entire rear of the Subject Property.

70Mr. Spaziani countered this with his opinion that the existing surface parking lot with some mature trees at the rear of the Subject Property is not compatible with the prevailing character of Hadley Road. He stated that development options for the existing parking lot, and neighbouring properties at 22, 24, and 26 Hadley Road are subject to the City’s Expanded Housing Options within Neighbourhoods (“EHON”) and there is a general expectation that redevelopment of these properties should also be anticipated. The Policy is based on efficient land use related to redevelopment, and he noted that the Proposal’s rear portion design, generally reflects the EHON guidelines and is compatible in both scale and character with the neighbourhood.

71The R zoning requires that the Proposal setbacks along Hadley Road are consistent with the adjacent property at 22 Hadley Road. The Proposal’s setback of 7.035 m and 6.135 m from the second and third levels, is generally similar to the existing 5.91 m setback at the neighbouring address.

72The Proposal’s space between the building design, allows for an area along Hadley Road that is approximately 237 m² consisting of plantings, trees, decorative paving, seating walls, a terrace and access to the building for service vehicles and users. Mr. Spaziani testified that “the variety of soft and hard landscape treatments comprise a successful public realm contribution and reflects similar treatments along Hadley Road”.

73Regarding setbacks along Hadley Road, it was also the opinion of Mr. Cowling that the Proposal has an adverse impact and that the proposed functional elements requiring access from Hadley Road are inappropriate. He asserted that the Proposal treated the Hadley Road frontage as a rear yard, rather than a front yard, and that it includes a service delivery driveway, a rear coiling overhead door, additional entrances, a gas meter and electrical transformer. His opinion was that all of these combined ‘rear yard treatments’ with the mass and scale of the proposed building is not appropriate in relation to the existing surrounding neighbourhood.

Findings Regarding Architecture and Urban Design

74These above noted elements of the Proposal, are perhaps some of the most critical elements which represent the basis for many of the objections from neighbouring property owners. Mr. Hirsh testified that the impact of the Proposal’s height would be severe, despite the Applicant’s efforts to mitigate height impact with sloping rooflines along Hadley Road. The Applicant witnesses have provided their opinions that demonstrate how the Proposal’s architectural features mitigate these concerns.

75The Tribunal notes that while much of the evidence provided by Mr. Spaziani underlines the near, to medium-term potential redevelopment opportunities, consistent with the EHON guidelines, in relation to a number of properties owned by the Applicant, these same guidelines are also available to all Hadley Road property owners. In fact, many property owners along Hadley Road, including Mr. Hirsh, have already benefitted from major renovation/reconstruction approvals through their own projects, demonstrating that permitted increases to FSI and building heights are feasible, as of right in some cases, and potentially could be the subjects of new CoA variance applications.

76The Panel understands that as a component of the Proposal, the Hadley Road frontage does represent the rear portion of the through lot, but also acknowledges that the front of the Regent, along Mt. Pleasant Road has consistently been used as its main entrance. It is clearly evident that the ‘rear’ portion of the through lot has always been used as a parking lot/loading area and with evidence of a gas connection, waste bins, and a hydro transformer, the Panel is convinced that this interpretation is accurate.

77The Tribunal noted that Mr. Cowling focussed on the existing character of the immediate area and paid little regard to the planned context and policies of EHON which were more effectively demonstrated through the Applicant’s evidence. Additionally, his opinion that the width of the Proposal along Hadley Road of 2.5 times that of homes along the street, was effectively countered in cross examination of Mr. Spaziani, who asserted that the design more accurately reflects a two-home width, that with its unique differences in property dimensions as a wider lot, it still transitioned well in relation to other lots along Hadley Road, and the Proposal’s built form continues to remain compatible with the existing area.

78In conclusion, the Tribunal prefers the Applicant’s evidence related to Architecture and Urban Design. The Proposal improves the public realm for the rear of the Subject Property through its compatible built form, setbacks, landscaping, and the sloping roofline with gable, maintaining consistency with existing and new built forms in both scale and character. The Proposal also reflects that future changes along Hadley Road should be anticipated over time, and very reasonably responds to these expectations resulting from the EHON guidelines.

79The detailed architectural images below with specific directional elevations, have been inserted to provide some visual assistance to the reader, in an effort to share the Tribunal’s determinations more precisely:

The Four Tests

Do the Variances Maintain the General Intent and Purpose of the Official Plan (“OP”)?

80The Application was filed in March 2023 and since that time there have been additional amendments that have been either adopted by City Council and/or approved by the Province and are not in-effect. Specifically, Ms. Paton provided evidence pertaining to OPA 591, approved by the Province on December 12, 2023, which contained new and updated policies related to employment and employment conversions. Ms. Paton provided testimony regarding OPA 649 and its associated Zoning By-law Amendment (By-law No. 474-2023), as approved by City Council on May 10, 2023. This change permits fourplexes as-of-right on all lands designated Neighbourhoods, subject to satisfying several criteria related to maintaining the low-rise built form of each geographic neighbourhood. Furthermore, Ms. Paton stated that on April 17 and 18, 2024, City Council adopted OPA 718 which proposes significant changes to Chapter 1 of the OP. OPA 718 is currently awaiting approval from the Province.

81Ms. Paton provided evidence that the Subject Property is guided by the YESP (“OPA 405”) and is located within Mount Pleasant South Village (C4). The westerly portion of the Subject Property is designated Mixed Use Areas “C” and the easterly portion is identified as “Land Use Designations”. As part of the Urban Structure of the OP, Mount Pleasant Road between Eglinton Avenue East and Davisville Avenue, is identified as ‘Avenues’ on Map 2.

82The Neighbourhoods designation for the easterly portion of the Subject Property permits a range of residential building types including walk-up apartments (not higher than four storeys) and low scale institutions such as schools, places of worship and community centres. Further s. 2.3 of the OP states that Neighbourhoods are stable but not static and Ms. Paton opined that the intent is thus to permit development and physical change to occur that respects the character of the existing community, allowing for compatible development.

83Ms. Paton opined that the term ‘compatible’ in:

land use planning terms does not mean “similar to” or “the same”, rather it means “capable of coexisting”. Development heights are to be respectful of those permitted by the zoning for nearby residential properties while also considering the existing form of development on the infill property and ensuring appropriate build form relationships to ensure buildings fit both with their existing and planned context. The intent is to also provide adequate privacy, sunlight and sky views between buildings.

84Ms. Paton provided testimony that the uniqueness of the Subject Property is addressed through Policy 4.1(5) that states that “lots fronting onto a major street show on Map 3, including Mount Pleasant Road, and designated Neighbourhoods are to be distinguished from lots in the interior of the clocks to recognize the potential for more intense forms of development along Major Street to the extent permitted by this Plan”.

85Ms. Paton references the following, regarding infill development in established Neighbourhoods on properties that vary from the local pattern in terms of lot size, configuration and/or orientation, such as the Subject Property, and are dealt with through Policy 4.1(9), which states that they:

• have heights, massing and scale that are respectful of those permitted by zoning for nearby residential properties, while taking into account the existing form of development on the infill property;

• have setbacks from adjacent residential properties and public streets that are proportionate to those permitted by zoning for adjacent residential properties, while taking into account the existing form of development on the infill property;

• provide adequate privacy, sunlight and sky views for occupants of new and existing buildings by ensuring adequate distance and separation between building walls and using landscaping, planting and fencing to enhance privacy where needed;

• front onto existing or newly created public streets wherever possible, with no gates limiting public access;

• provide safe, accessible pedestrian walkways from public streets; and,

• locate, screen and wherever possible enclose service areas and garbage storage and parking, including access to any underground parking, so as to minimize the impact on existing and new streets on residences.

86‘Avenues’ are one of four land use designations expected to accommodate the City’s growth and are regarded as important corridors, where re-urbanization is anticipated and encouraged. Ms. Paton stated that Policy 4.5(2) provides considerations for development and that the following are supported by the Proposal:

• locating and massing new buildings to provide a transition between areas of different development intensity and scale, as necessary to achieve the objectives of the Plan, through means such as providing appropriate setbacks and/or a stepping down of heights, particularly towards lower scale Neighbourhoods;

• locating and massing new buildings so as to adequately limit shadow impacts on adjacent Neighbourhoods, particularly during the spring and fall equinoxes;

• locating and massing new buildings to frame the edges of streets and parks with good proportion and maintaining sunlight and comfortable wind conditions for pedestrians on adjacent streets, parks, and open spaces;

• providing an attractive, comfortable, and safe pedestrian environment;

• taking advantage of nearby transit services; and

• locating and screening service areas, ramps, and garbage storage to minimize the impact on adjacent streets and residences.

87Relevant policies in the OP pertaining to heritage conservation are found in s. 3.1.6. Ms. Paton concurred and relied on the conclusion of the HIA, which found that the Proposal “is not anticipated to have an adverse impact on the cultural Heritage value of the Subject Site or the adjacent Heritage properties…through rehabilitation, reconstruction and high-quality design, the Proposal will conserve the integrity of the Subject Site and the Heritage attributes”.

88Ms. Paton provided testimony that Policy 5.1.1 (a) of the Secondary Plan speaks to built form and states that “development will allow for compatible low-rise development in Neighbourhoods and provide transition from Mixed Use Areas through a variety of context-appropriate approaches that adequately limit shadow and privacy impacts…and be compatible with the streetwall height and the provision of other architectural detailing and finishes that are compatible with the Heritage character”. And further, Policy 5.2.2 states that “development may be required to provide additional setbacks, step backs and stepping down of building height over and above the minimum site and urban design standards identified in the Secondary Plan to complement the scale and character of a cultural Heritage resource”.

89It was the opinion of Ms. Paton that the rehearsal/community space complies with the intent of Policy 6.8 which encourages development to provide accessible community space for organizations that based on the City and are founded in community service, art and culture, or recreation.

90Ms. Paton asserted that the Proposal will permit the rehabilitation of the front wall façade and facilitate a third storey glazed front addition that will be stepped back from the principal façade, maintaining a consistent streetwall along Mt. Pleasant Road, while protecting the Heritage attributes of the building.

91Therefore, Ms. Paton concluded that the Variances, individually and collectively, maintain the general intent and purpose of the OP.

92Mr. Romano opined in reference to Policy 4.1.5 of the OP, that the physical characteristics of both the entire geographic area (the broader context) and those properties that are within immediate proximity (immediate context) to the proposed development are to be considered. However, in instances of significant difference between the two contexts the immediate context should be given greater relevance. Further, that the building type and physical character of a geographic neighborhood will be determined by the most prevailing within the neighbourhood.

93The Neighbourhoods portion of the Subject Property is permitted for low-rise buildings and Mr. Romano highlighted amongst other policy the following:

Policy 5.3.8

• support achieving the overall vision for the respective Character Area and the Public Realm Moves;

• encourage and enable modest intensification while contributing to a diversity of housing types in the Secondary Plan area; and

• respond and relate to existing low-rise neighbourhoods immediately abutting a site.

Policy 5.3.10

• relate directly to the existing or ‘natural’ grade of a site by generally maintaining the existing grade at property lines; and b. have well-designed entrances and transitions from the public to private realm which will include reasonable setbacks at grade and architectural and landscape cues.

Policy 5.3.15

• generally, sites located in the Mount Pleasant North and Davisville Community Street Character Areas adjacent to Neighbourhood designated lands will provide an appropriate setback at the rear of the property, inclusive of any existing laneways. Where possible, a sufficient setback should be provided that can accommodate a laneway and landscaped buffer.

Policy 5.3.17

• generally, buildings greater than three storeys in height will provide a stepback above the third storey adjacent to Neighbourhood designated lands to provide a transition in height and ensure privacy and sky view.

Policy 5.3.27

• in instances where the rear of the property is at a different grade level than the primary street frontage, the required stepping should be taken from the lowest grade elevation of the adjacent property located along the rear property line.

94Mr. Romano opined that the intention of the policies within the OP aim to ensure that neighbourhoods remain stable and that is achieved by requiring developments to respect the existing physical character and for the prevailing character to be reinforced through open space patterns, building setbacks, landscape open space, height, mass, scale, and density of development.

95Mr. Romano concluded that based on these provisions, the Proposal is within the Mount Pleasant Mixed Use Areas, and does not transition appropriately into the Neighbourhoods designation and, therefore, does not achieve the policy intent and purpose of the OP.

Do the Variances Maintain the General Intent and Purpose of the Zoning By-Law (“ZBL”)?

96Ms. Paton opined that as the main wall provides a consistent streetwall along Mount Pleasant, with the upper portion glazed and stepped back, the requested main wall Variance meets the general intent and purpose of the ZBL.

97Ms. Paton further opined that the minimum side yard setback and angular plane requirements within the ZBL aim to achieve an appropriate built form relationship and interface between residential and non-residential uses, which allows for adequate transition in building height and massing. The rear addition of the Proposal maintains the same side yard setbacks currently exist, except for the ground floor vestibule located at the secondary service entrance, which is proposed to be set back 1.195 m, as opposed to the remainder of the building which is set back consistently at 2.8 m.

98With the as-of-right permitted building height in the R zone established at 10 m, it was the opinion of Ms. Paton that the new rear roof line provides a gradual transition of height and scale that recognizes the existing form and scale of development on the immediate context.

99Related to this, a significant portion of the third storey rear addition will be used for mechanical, lighting, storage, catwalk access, and the basement addition which will be used for a large electrical room and storage. Ms. Paton opined that this should not be accounted for when considering the FSI. Much of the activity will take place in the portion of the building along the Mt. Pleasant Road frontage.

100Ms. Paton uses the comparison of a residential building that is 10 m in height, when considering privacy through the zoning setbacks for adjacent properties along Hadley Road. The ZBL allows for a setback of 0.45 m where there are no windows planned and 0.9 m where windows are included.

101Mr. Spaziani’s previous shadow study analysis was also referenced by Ms. Paton, who shared the same opinion, that the shadow impacts of the Proposal are minor and will not limit the use of the affected rear yards of the properties to the north, in any significant fashion. While the first floor height is less than the required 4.5 m, it is consistent with the existing fist-floor height. It was the opinion of Ms. Paton that the purpose of the first-floor height is to maintain floor to ceiling heights, ensure the accommodation of a range of non-residential uses and thus the general intent and purpose of ZBL are maintained through the Proposal.

102Ms. Paton reiterated that both the exterior stair side yard setbacks and the canopy proposed for a secondary service entrance comply with the ZBL as they will not result in any privacy concerns or adverse impacts on adjacent properties.

103Ms. Paton testified that the Regent has existed for almost a century in harmony with the existing community, and that the Floor Area of an Entertainment Place of Assembly Use within the CR zone of the Proposal appropriately mitigates impacts related to the proximity of the use, such as:

• Noise: through the enclosure of the mechanical equipment into the third storey of the rear addition;

• Shadows: through the proposed massing and sloped roof;

• Privacy: through the absence of windows on the north and south facades;

• Servicing, Loading and Deliveries: through the fully enclosed Loading Area.

104Ms. Paton concluded that the requested Variances relating to building height, FSI, side yard setbacks, rear yard setbacks, main wall setback, minimum first floor height, angular plane, exterior side yard setbacks, the canopy, and floor area of an Entertainment Place of Assembly Use, all individually and collectively, meet the general intent and purpose of the ZBL.

105Mr. Romano opined that the restrictions to limit certain types of uses through the ZBL stipulate that there is a limitation on the interior floor area for an Entertainment Place of Assembly within 6.1 m of a residential zone to a maximum of 400 m². He further asserted that the Proposal seeking 3,383 m², of which a significant portion is located within the R zone, far exceeds what is permitted through the ZBL.

106Mr. Romano further testified that the Proposal is not consistent with the existing residential area that has remained stable even with ongoing, new development and has maintained its low scale, conventional residential neighbourhood design. He highlighted that the Variances requested through the Proposal include:

a) A northerly side yard setback of 0 m to the lot line, and a southerly side yard set back of 2.21 m to the lot line, which conflicts with the minimum side yard setback requirement for a non-residential building of 7.5 m setback to the lot line. Neither of the side yard setbacks meet the requirements within the ZBL;

b) The existing rear yard setback to the Hadley Road lot line is currently 23.3 m and will be reduced to 5.7 m, which conflicts with the minimum rear yard setback requirement of 7.5 m. The remaining space is largely hardscaped with the loading bay access;

c) The ZBL requires that minimum of 1.5 m wide strip of land for soft landscaping must be provided along the part of the lot line abutting adjacent R zone property. The Proposal consists of 0 m width of soft landscaping;

d) The building height exceeds the maximum requirement in the ZBL and fails to transition appropriately towards the abutting residential properties, with the Proposal extending deeper into the R zone lands. He, therefore, concluded that this does not meet the requirements in height, mass, scale and intensity of use.

107Therefore, Mr. Romano concluded that the Variances do not meet the general intent and purpose of the ZBL.

Are the Variances Desirable for the Appropriate Development or Use of the Land?

108Ms. Paton generally opined that the Variances are desirable for the appropriate development and use of the land as they will permit the expansion of a longstanding, existing Theatre with a dedicated community space as a component of the Proposal. Furthermore, she asserted that the Proposal has appropriately mitigated the impacts in relation to an expanded Entertainment Place of Assembly use, in close proximity to adjacent residential uses, but remains predominantly as a vibrant part of the Mt. Pleasant Road commercial context.

109Ms. Paton also specifically concluded that, individually and collectively, “the requested Variances will facilitate the improvement of the Theatre in terms of building and technical standards to meet the needs of a modern live theatre venue, that will be able to accommodate desirable and in-demand artistic and cultural services.”

110Mr. Romano shared that, in his opinion:

the Proposal facilitates development upon the residentially zoned lands that results in an overdevelopment and commercialization of the residential area that does not fit appropriately with the existing and planned context…they represent an intensity of commercialization that is neither contemplated, nor intended, by the existing and planned context…the site layout occupies an excessive amount of the Subject Lands’ residentially zoned lands. Building and servicing components dominate.

111Mr. Romano further opined that the Proposal will:

a) Both individually and cumulatively, facilitate a development that is excessive and incompatible with the existing and planned context of the immediate area;

b) Result in an uncharacteristic public realm along Hadley Road;

c) Result in the intensity of use detracting from the residential area, which is not appropriate in relation to the existing and planned context;

d) Result in a massing that dominates the residentially zoned lands of the Subject Property and is excessive in relation to the existing and planned context;

e) Result in a building height that occupies space that is intended to be open and unencumbered.

Are the Variances Minor in Nature?

112Ms. Paton reiterated that the requirement is not to have “no impact” but rather to have development be “compatible” within the existing and planned context, and in considering whether the Variances are minor in nature. She references that “minor” is generally an assessment of impact, and in this instance, one should consider the existing form, location, scale and existing Entertainment Place of Assembly use.

113She further stated that:

the Application will permit the expansion of a use that has existed on the Subject Site for almost 100 years in such a manner that will provide an enhanced cultural amenity for the local community and the broader City in a way that is contextually appropriate and that have been designed to provide for an appropriate and sensitive transition in height and mass towards the existing residential dwellings on Hadley Road and the 10 metre height is permitted as-of-right.

114She concluded that given the mitigation efforts of the Proposal on potential impacts to the surrounding neighbourhood and the fact that several of the Variances are either reflective of the conditions that have existed on the Subject Property, or in the opinion of Ms. Paton, improve upon those conditions, she testified that the Variances were indeed “minor” in nature.

115Mr. Romano shared his opinion that the Variances are not minor given the scale and intensity of proposed commercial uses that would extend deeply into the residential area and the proposed development is too large and uncharacteristic of the residential area. Mr. Romano provided evidence that the proposed development would result in unacceptable adverse impacts due to the size, height, mass, scale, and use.

116Mr. Romano testified that the individual and cumulative impacts of the Proposal in its built form and uses are not minor, intensifying a commercial use within a residential community. The evidence and oral testimony he provided echoed many of the concerns raised throughout the Participant Statements.

Findings Regarding the ‘Four Tests’

117Regarding the general intent and purpose of the OP, the Panel concluded that it prefers the evidence of the Applicant and agrees that the Variances meet the general intent and purpose of the OP. As a unique through lot with a mixed designation, the OP recognizes and provides guidance for development criteria for properties that may not match existing neighbourhood patterns, such as the Subject Property. Additionally, the goal is to ensure that development fits appropriately within both the current and planned context for the area. This does not mean that they must be the same.

118Regarding the general intent and purpose of the ZBL, the Panel prefers the evidence of Ms. Paton, who is of the opinion that both individually and collectively, the relief sought by the Variances in the Proposal meet the general intent and purpose of the ZBL. Many of the Variances are seeking relief for conditions on the Subject Property that have existed since its original construction, and subsequent renovations.

119There is no question, that the majority of the concerns raised by the MPVRRA are the result of the Proposal rear addition. Witnesses for the Association, consistently objected to the building mass, scale and intensification of an existing commercial use within the R zone, which in their opinion did not meet the general intent and purpose of the ZBL.

120The Tribunal finds that mitigation measures in the Proposal’s design demonstrated respect of privacy, show minimal shadow impacts, provide for a containment of noise levels at the mechanical level, and for the most part will encourage an enclosed delivery/loading system at the rear of the Subject Property. Furthermore, the Tribunal finds that the built form that transitions towards the residential neighbouring properties, does so, with a rather creative architectural design, that is sensitive to the immediate built form character, but is also cognizant of what the future may hold for neighbouring properties.

121With regard to the “test” relating to desirability of the Proposal and again, based on a review of all of the evidence, notwithstanding concerns raised from Hadley Road residents, the Tribunal is persuaded that the City staff are generally supportive of the Proposal. Counsel for the City was present only for the testimony of the Heritage Planner, who was summoned by the MPVRRA, who effectively reinforced much of the Heritage history associated with the Theatre and Cinema operations over time. The local Business Improvement Area, other neighbourhood organizations including South Eglinton Davisville Residents’ Association, and a number of individual residents, had conveyed their support for the Proposal at the CoA, as being desirable, and an appropriate use of the Subject Property.

122Finally, regarding the “minor in nature” test, the Panel is persuaded by the Applicant’s evidence that the requirement is not to have “no impact” but rather to have a development that is compatible with both the existing and planned context. The Proposal is compatible and therefore, minor, in its impact on the immediate surroundings, and within the existing and future planning context.

123In conclusion the Tribunal finds that all of the Variances, independently and collectively, meet the requirements pursuant to s. 45(1) of the Act, and also emphasizes the importance of the SPA process, which may allow for additional mitigation best practices, to continue to show regard for community issues of concern.

PPS, GP, and Section 2 of the Planning Act

124Based on submissions from both Parties at the Hearing, there appeared to be general agreement that the Proposal is consistent with and conforms to the Provincial guidelines. As the Subject Property is located within a Delineated Built-Up Area of the Settlement Area, the Parties agreed that the Proposal is consistent with the PPS and conforms with the Growth Plan.

125Ms. Paton provided evidence that the Proposal is consistent with the PPS as it supports healthy, liveable communities, long-term economic prosperity, and the conservation of cultural Heritage. Further to this, she demonstrated that the Proposal conforms with the Growth Plan as it optimizes land, existing infrastructure, supports the achievement of complete communities and promotes a diverse mix of land uses in proximity to higher-order transit.

126While there were generally no areas of disagreement regarding the PPS and GP, Mr. Romano did differ in his opinion with regard to s. 2 of the Act, in that because there are two zoning designations, there are two lot frontages, and both should apply in this instance. He did acknowledge in cross, however, that the City has deemed Mt. Pleasant Road as the front of the lot, and that the lot differs from the prevailing character of other properties.

127Finally, Ms. Paton concluded that the Proposal has regard for matters of provincial interest for a number of reasons including: providing employment opportunities; protection of the financial and economic well-being of the Province and City; orderly development of safe and healthy communities; encouraging a sense of place; and providing adequate provision for social, cultural and recreational facilities; through its efforts to preserve and support the conservation of features of significant cultural and historical interest.

CONCLUSIONS AND DISPOSITION

128The suggestion that the Panel should attribute limited significance to the overall applicable planning policies, is not representative of the Tribunal’s mandate. The Panel accepts and prefers the evidence from the Applicant, and further notes the Applicant’s counsel submission which states that “Planning in the Province of Ontario is based on a hierarchy of planning policy documents to be applied to land use decision as part of a mandatory statutory review. The Planning Act, the Provincial Policy Statement and the Growth Plan for the Greater Golden Horseshoe are the “apex" of the planning hierarchy, flowing down to Official Plan Policies”.

129The Tribunal finds that the Proposal has regard for matters of provincial interest, particularly, because it addresses the desire to ensure adequate provisions for social, cultural and recreational facilities, as well as the preservation of features of significant cultural and historical importance. Land use decisions do require a mandatory review of applicable planning policy and the Tribunal gives significant weight to these established policies and guidelines. Given the importance of developing complete communities that ensure adequate provisions for cultural facilities and the desire for Heritage preservation, the Panel determined that the Proposal is consistent with the Provincial Policy Statement, conforms with the Growth Plan, and has regard for matters of Provincial interest as set out in s. 2 of the Planning Act.

130Furthermore, based on all of the evidence, the Panel also finds that the Variances sought as a result of the Proposal meet the four tests pursuant to s. 45(1) of the Act. The Panel concludes that the Variances have met the general intent and purpose of the OP and ZBL, through its transition in height and scale into the R zone, with significant improvements to the overall Subject Property, impressive architectural design, and regard for rear lot improvements respectful of the neighbourhood character. The Proposal demonstrates that it maintains a compatible built form, while mitigating the expanded use within the R zone for both the existing and planned context.

131The Proposal provides for the rehabilitation and expansion of a cultural Heritage asset within the City and provides needed community space and represents a much needed economic injection through the renewal of the Regent, that will benefit the area’s growing population in the years to come. Therefore, the Tribunal finds that the Variances are desirable for the appropriate development and use of the Subject Property and, individually and collectively, the Variances requested are indeed minor in nature.

132Lastly the Panel concludes that the Application is representative of good planning and is in the public interest. The Regent has existed for almost 100 years, and the Theatre’s preservation, coupled with the economic renewal in the area will help to reinforce, and broaden public interest ensuring the building of complete communities with access to cultural amenities complemented by enhanced community space.

ORDER

133THE TRIBUNAL ORDERS that:

1. the appeal under subsection 45(12) of the Planning Act is allowed, and the Variances listed in Schedule A are authorized, subject to the following conditions set in Schedule B;

2. pursuant to subsection 45(18.1.1) of the Planning Act, no further notice is required under subsection 45(18.1) of the Planning Act in respect of the amendments to the original application considered by the Ontario Land Tribunal; and,

3. the Site Plan Appeal remains adjourned sine die.

134The Panel Members will remain seized of the matter and may be contacted through the Case Coordinator should any other issues arise.

“j. innis”

J. INNIS

MEMBER

“steven Mastoras”

steven mastoras

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.

SCHEDULE A

LIST OF VARIANCES

REQUESTED PERMISSION UNDER SUBSECTION 45(2)(A)(I) OF THE PLANNING ACT:

This property has legal non-conforming status under the Planning Act, as the entertainment place of assembly containing a theatre use existed prior to the passing of the Zoning By-law, which is not permitted in a residential zone (R).

Any change of use, alterations, or additions to the building, within the residential zone (R), requires the permission of the Committee of Adjustment. The proposal to renovate and partially reconstruct the existing theatre with a three-storey rear addition constitutes an alteration and extension to the legal non-conforming use.

REQUESTED VARIANCE(S) TO THE ZONING BY-LAW:

1. Chapter 900.11.10, Exception CR 531, (C) By-law 569-2013

These premises must comply with Regulation 900.11.10(732) (A):

The lands, or a portion thereof as noted below, are subject to the following Site Specific Provisions, Prevailing By-laws and Prevailing Sections:

Up to a height of 7.5m, at least 75% of the main wall of the building facing a lot line abutting Mount Pleasant Road must be between 0.0m and 0.5m from the required front yard setback, and all of the main wall of the building facing a lot line abutting Mount Pleasant Road must be between 0.0m and 5.5m from the front lot line or required front yard setback.

The proposed front yard setback projects over the lot line, and the upper portion of the building fronting on Mount Pleasant is 13.35m away from the front lot line.

2. Chapter 10.10.40.70 (3) (C)(iii), By-law 569-2013

The required minimum side yard setback for a non-residential building is 7.5m.

The proposed side yard setback is 0m to the North side lot line.

3. Chapter 10.10.40.70 (3) (C)(iii), By-law 569-2013

The required minimum side yard setback for a non-residential building is 7.5m. The proposed side yard setback is 1.19 m to the South side lot line.

4. Chapter 10.10.40.10 (1) (A), By-law 569-2013

The permitted maximum height of a building or structure is 10m.

The proposed height of the building/structure is 16m.

5. Chapter 10.10.40.40 (1) (A), By-law 569-2013

The permitted maximum floor space index is 0.6 times the area of the lot.

The proposed floor space index is 2.92 times the area of the lot.

6. 40.10.40.40(1)(B), By-law 569-2013

The permitted maximum floor space index for non-residential uses on the lot is 2 times the lot area.

The proposed non-residential floor space is 2.82 times the lot area.

7. Chapter 10.5.40.60 (3) (A) (iii), By-law 569-2013

Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6m.

The proposed stairs are 0m from the west lot line.

8. Chapter 10.5.40.60 (3) (A) (iii), By-law 569-2013

Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6m.

The proposed stairs are 0.0 m from the south lot line.

9. Chapter 10.10.40.70 (2), By-law 569-2013

The required minimum rear yard setback is 7.5m.

The proposed rear yard setback is 5.6 m.

10. Chapter 40.10.20.100 (1), By-law 569-2013

The total interior floor area of Entertainment places of assembly uses on a lot within 6.1m of a lot in the Residential Zone category on a lot which is subject to Development Standard Set 1 (SS1) or Development Standard Set 2 (SS2) may not exceed 400m².

The proposed total interior floor area is 1,703.25 m²

11. Chapter 40.10.40.70 (2) (E) (i), By-law 569-2013

If a lot abuts an O, ON or OR zone or the Residential Zone category or Residential Apartment Zone category, then every building on the lot in the CR Zone 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 10.5m above the average elevation of the ground along the rear lot line.

The proposed building penetrates the angular plane.

12. Chapter 900.10.11(2302) - Prevailing By-laws and Prevailing Sections (C) - Section 12(2) 119 C) of former City of Toronto By-law 438-86

A building is not permitted to encroach within a 60 degree angular plane constructed over the lot from the lot line facing an R district and from a line 10.0 metres from the lot line facing a public highway.

The angular plane falls within the proposed building.

13. Chapter 40.10.50.10 (3), By-law 569-2013

If a lot abuts a lot in the Residential Zone category or Residential Apartment Zone category, a minimum 1.5m wide strip of land used only for soft landscaping must be provided along the part of the lot line abutting the lot in the Residential Zone category or Residential Apartment Zone category.

The proposed soft landscaping strip is 0m wide.

14. Chapter 40.10.40.70 (2)(C)

Where the main wall of a building has windows or openings, the main wall must be setback at least 5.5m from a side lot line that is not adjacent to a street or lane.

The proposed third storey main wall (glazing) is setback 0m from the north lot line. Note: referring to the CR portion of the lot.

15. Chapter 40.10.40.70 (2)(C), By-law 569-2013

Where the main wall of a building has windows or openings, the main wall must be setback at least 5.5m from a side lot line that is not adjacent to a street or lane.

The proposed third storey main wall (glazing) is setback 0m from the north lot line. Note: referring to the CR portion of the lot.

16. Chapter 10.5.40.60.(2)(B)(ii), By-law 569-2013

A canopy, awning or similar structure not covering a platform may encroach in a side yard, a maximum of 1.5 metres, if it is no closer to the side lot line than 0.3 metres.

The proposed canopy is 0 metres from the South lot line.

17. 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 metres.

The proposed height of the first storey is 3.07 metres.

SCHEDULE B

CONDITIONS OF APPROVAL

The decision of the Ontario Land Tribunal is subject to the following conditions:

1. Prior to the issuance of a building permit, the applicant/owner shall submit a complete application for a permit to injure or remove a City owned tree(s), as per City’s Municipal Code Chapter 813, Trees Article II Trees on City Streets.

2. Prior to the issuance of a building permit, the applicant/owner shall submit a complete application for a permit to injure or remove a privately owned tree(s), as per City’s Municipal Code Chapter 813, Trees Article III Private Tree Protection.

3. The building height be substantially in accordance with the north, south and east elevations on Drawings A30-01 & A30-02 (Page 25 of Exhibit 11) attached hereto.

4. Prior to the issuance of a building permit, building permit drawings, including plans, elevations and details, shall be submitted to the satisfaction of the Senior Manager, Heritage Planning, Urban Design, City Planning.