191 Niagara St. Inc. v. City of Toronto, 2025 CanLII 18356

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 27, 2025

CASE NO(S).: OLT-24-000582

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

Applicant/Appellant: 191 Niagara St. Inc.

Subject: Minor Variance

Description: To add three storeys with rear decks and a rooftop common space to existing 1-storey commercial building

Reference Number: A1082/23TEY

Property Address: 187-191 Niagara Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-24-000582

OLT Lead Case No.: OLT-24-000582

OLT Case Name: 191 Niagara St. Inc. v. City of Toronto

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

Applicant/Appellant: 191 Niagara St. Inc.

Subject: Site Plan

Description: To add three storeys with rear decks and a rooftop common space to existing 1-storey commercial building

Reference Number: 23 207902 STE 10 SA

Property Address: 187-191 Niagara Street

Municipality/UT: Toronto/Toronto

OLT Case No.: OLT-24-000697

OLT Lead Case No.: OLT-24-000582

Heard: November 14, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
191 Niagara St. Inc.	Eileen Costello
City of Toronto	Adam Ward

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This hearing was convened to consider the appeals by 191 Niagara St. Inc. (“Appellant”) of the decision of the City of Toronto (“City”) Committee of Adjustment (“COA”) made on May 14, 2024, to approve the minor variances with subsequent specific conditions.

NEIGHBOURHOOD CHARACTERSITICS

2The property municipally known as 187-191 Niagara Street (“the Site”) is located on the west side of Niagara Street, midway between King Street West and Wellington Street West. The Site is currently developed with a 1-storey office building and is designated as Neighbourhood by the City of Toronto Official Plan (the “OP”). The OP identifies Neighbourhoods as generally stable areas within the City which are comprised of lower-intensity uses of no higher than 4 storeys.

3Permitted uses in the Neighbourhoods designation are primarily residential, however the Neighbourhoods designation also provides for parks, low scale local institutions, home occupations, cultural and recreational facilities and small-scale retail, service and office uses.

4The proposed office use reflects the existing use of the Site and is a permitted use within the Neighbourhoods designation.

PLANNING HISTORY

5In July 2021, the COA approved a minor variance application (Committee File No. A0934/20TEY) to facilitate a 2‐storey addition to the existing building (“Previous Approval”).

6The Site was subsequently purchased by the Appellant and applications for minor variance and site plan approval were submitted to facilitate the development of the Site with a new headquarters for their company.

7The Appellant is proposing to modify the existing one-storey commercial building by adding a 3‐storey addition and sought nine (9) variances.

8The requested variances are:

1. Section 12(1)467.(6), By-law 438-86 The maximum permitted gross floor area of a non-residential building is 2 times the area of the lot (1,349.6 m²). The altered building will have a gross floor area equal to 3.1 times the area of the lot (2,087 m2).

2. Section 4(4), By-law 438-86 A minimum of 11 parking spaces are required to be provided on-site. In this case, there will be 3 parking spaces provided on-site

3. Section 4(17)(c), By-law 438-86 The parallel parking spaces on-site must have a minimum width of 2.9 m (when one side of the parking space is obstructed) and a minimum length of 6.7 m. In this case, the parallel parking spaces on-site will measure 2.3 m in width and 6.7m in length.

4. Section 4(4)(c)(ii), By-law 438-86 The minimum width of an unobstructed driveway providing two-way access to and from the parking facilities is 5.5 m. In this case, the driveway providing two-way access to the parking facilities from Niagara Street and the rear (west) public lane will be 3 m wide.

5. Section 12(1)467.(1)2, By-law 438-86 The minimum required side yard setback is 0.6 m. The altered building will be located 0.3 m from the side (north) lot line.

6. Section 12(1)467.(2), By-law 438-86 The maximum permitted building depth is 17 m. The altered building will have the following depths measured from the front (east) lot line: 28.08 m for the second storey addition; 25.35 m for the third storey addition; and, 22.93 m for the fourth storey addition.

7. Section 12(1)467.(1)3, By-law 438-86 The minimum required rear yard setback is 7.5 m. The altered building will be setback from the rear (west) lot line as follows: 0 m to the first and second storey rear decks; 0 m to the second storey addition; between 2.82 m and 5.6 m to the third storey addition; and, between 5.26 m and 5.6 m to the fourth storey addition.

8. Section 12(1)467.(3)(i), By-law 438-86 The building or structure must be contained within a 44-degree angular plane projected over the lot from the front lot line, starting from a height of 9 m above grade. The altered building will penetrate the angular plane over the lot from a height of 9 m above grade.

9. Section 12(1)467.(3)(ii), By-law 438-86 The maximum permitted building height is 12 m. The altered building will have the following heights: 19.01 m measured to the top of the guard on the roof of the 4th storey; 20.85 m measured to the top of the north side stair roof parapet; 20.85 m measured to the top of the south side stair roof parapet; 21.74 m measured to the top of the pergola structure on the rooftop; 23.32 m measured to the top of the elevator overrun.

9On May 8 2024, the City of Toronto held the statutory public meeting.

10Overlook was one of the concerns raised by the neighbours and for which the COA considered various options to provide relief to. The COA discussed adding a condition to provide for a raised planter box on the rooftop common amenity space deck in a certain location and with certain dimensions and which condition was agreed to by the Appellant representatives. The COA also considered adding a condition to provide opaque privacy screening or fences on all west-facing decks located on the rear second, third and fourth storeys.

11The Appellant was not opposed to the concept of adding screening.

On May 14, 2024, the COA rendered its decision to APPROVE the Application, with the two following conditions:

1. All west-facing decks (located on the rear second, third and fourth storeys) as well as the rooftop common amenity space deck area must be constructed with opaque privacy screening or fencing that is permanent, located on the west edges of the decks to a minimum height of 1.5 m, measured from the floor of the decks/rooftop common amenity space deck area and the barriers/guard railings of these decks (including the rooftop deck) must be constructed of opaque materials.

2. The rooftop common amenity space deck area must be constructed with a raised permanent planter box that is to be located on the west edge of the rooftop common amenity space to a minimum height of 1 m (measured from the floor of the rooftop common amenity space), and a minimum depth of 0.45 m.

12The Appellant objected to Condition 1 set out by the COA.

13The Tribunal was informed that through discussions with the City, the Appellant proposed the alteration of the two Conditions set by the COA.

14The revised proposed conditions are:

1. No projecting balconies are permitted on the west edges of the ground and second storeys.

2. All west-facing decks located on the third and fourth storeys must be constructed with a railing treated with Jacob webnet – Metal Mesh that is permanent, located on the west edges of the decks to a minimum height of 1.17 m, measured from the floor of the decks.

3. The west-facing deck located on the rooftop must be constructed with a railing treated with Jacob webnet – Metal Mesh that is permanent, located on the west edge of the rooftop to a minimum height of 1.07 m, measured from the floor of the rooftop.

4. The third and fourth storey decks must also be constructed with a raised permanent planter box that is to be located on the west edge of these decks. It shall have a height of 0.1m and a depth of 0.305m.

SUBMISSIONS

15The Tribunal heard opinion evidence from one witness, Mr. Benjamin Larson, a Planner and Partner with the firm Elevate Planning & Project Management Inc., on behalf of the Appellant.

16Mr. Larson was qualified with no objections and affirmed to provide evidence in the area of land use planning.

PLANNING EVIDENCE

17The Tribunal must consider whether the variances have sufficient regard to the Provincial interests listed in s. 2 of the Act, are consistent with the Provincial Planning Statement, 2024 (the “PPS”)and meet each of the four tests in s. 45(1) of the Act.

Maintains the general intent and purpose of the County OP and City OP

18Mr. Larson opined the proposal, as implemented by the variances and associated conditions, maintains the general intent of the Official Plan through;

• the promotion of a built form that mitigates impact through carefully considered massing and screening strategy; and,

• The Garrison Common North Secondary Plan by promoting adaptive re- use of an existing non-residential building promoting commercial expansion to help solidify the area as a leading location for new industry technologies.

Maintains the general intent and purpose of the ZBL

19Mr. Larson opined the proposal individually and collectively meet the intent and purpose of the Zoning By-law through:

• representing a commercial expansion which maintains the intent of the relevant Zoning exception that permits mixed-use and non-residential buildings; and,

• a consistent density and height context that the site finds itself within; and,

• the variances related to setbacks are also appropriate as some are pre-existing conditions while others still provide for a built form that includes rear stepping in support of achieving transition.

Be desirable for the appropriate development or use of the land, building or structure.

20Mr. Larson opined the proposal is appropriate as it:

• advances a major planning objective of The Garrison Common North Secondary Plan which sets out a desirable planned vision to solidify the area as one of the leading locations for new industry technologies,

• promotes adaptive re-use of existing non-residential (or former industrial) building,

• provides for expanded employment opportunities,

• makes efficient use of existing and planning transit,

• will assist in meeting minimum employment density targets within the King- Bathurst PMTSA and,

• mitigates overlook issues through the building design and the modified approval conditions (i.e. the deletion of rear balconies and proposed screening strategy).

Be minor in nature

21Mr. Larson opined as the Site’s context and other variances that have been approved by the COA, the 9 variances individually and collected are minor in nature.

FINDINGS

22Notwithstanding that the COA authorized the nine requested variances, the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Appellant.

23The Tribunal’s authority to authorize variances is given under s. 45(1) of the Act, which sets out the four tests that must be satisfied by an Applicant when making an application for the authorization of variances.

24The tests require that the variances:

a. maintain the general intent and purpose of the OP;

b. maintain the general intent and purpose of the ZBL;

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

d. be minor in nature

25The Tribunal accepts and agrees with the unchallenged evidence of Mr. Larson.

26The modifications to the Conditions set forth by the COA address the intent of mitigating the rear overlook.

27The Tribunal is satisfied that the enhanced privacy improves the overall overlook condition exceeding the standards set by the minor variance approval.

28The Tribunal finds that through the approvals, the Appellant can proceed with their proposed commercial expansion and adaptive reuse of an existing non-residential building on a site strategically located in a transit-supportive area of the City.

29The Tribunal further finds that the four tests in the Act are met, including that the variances are minor, desirable for the appropriate development or use of the land, they maintain the general intent and purpose of the zoning by-law and maintain the general intent and purpose of the official plan.

30Furthermore, the City’s decision not to oppose these variances provides added credibility to the appeal and the Tribunal determines the appeal should be allowed.

ORDER

31THE TRIBUNAL ORDERS THAT the appeal is allowed and the variances to By-law 438-86 are authorized subject to the conditions set out in Attachment 1 to this Order.

“Carmine Tucci”

CARMINE TUCCI

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.

ATTACHMENT 1

Variances

1. Section 12(1)467.(6), By-law 438-86 The maximum permitted gross floor area of a non-residential building is 2 times the area of the lot (1,349.6 m²). The altered building will have a gross floor area equal to 3.1 times the area of the lot (2,087 m2).

2. Section 4(4), By-law 438-86 A minimum of 11 parking spaces are required to be provided on-site. In this case, there will be 3 parking spaces provided on-site.

3. Section 4(17)(c), By-law 438-86 The parallel parking spaces on-site must have a minimum width of 2.9 m (when one side of the parking space is obstructed) and a minimum length of 6.7 m. In this case, the parallel parking spaces on-site will measure 2.3 m in width and 6.7 m in length.

4. Section 4(4)(c)(ii), By-law 438-86 The minimum width of an unobstructed driveway providing two-way access to and from the parking facilities is 5.5 m. In this case, the driveway providing two-way access to the parking facilities from Niagara Street and the rear (west) public lane will be 3 m wide.

5. Section 12(1)467.(1)2, By-law 438-86 The minimum required side yard setback is 0.6 m. The altered building will be located 0.3 m from the side (north) lot line.

6. Section 12(1)467.(2), By-law 438-86 The maximum permitted building depth is 17 m. The altered building will have the following depths measured from the front (east) lot line: 28.08 m for the second storey addition; 25.35 m for the third storey addition; and, 22.93 m for the fourth storey addition.

7. Section 12(1)467.(1)3, By-law 438-86 The minimum required rear yard setback is 7.5 m. The altered building will be setback from the rear (west) lot line as follows: 0 m to the first and second storey rear decks; 0 m to the second storey addition; between 2.82 m and 5.6 m to the third storey addition; and, between 5.26 m and 5.6 m to the fourth storey addition.

8. Section 12(1)467.(3)(i), By-law 438-86 The building or structure must be contained within a 44-degree angular plane projected over the lot from the front lot line, starting from a height of 9 m above grade. The altered building will penetrate the angular plane over the lot from a height of 9 m above grade.

9. Section 12(1)467.(3)(ii), By-law 438-86 The maximum permitted building height is 12 m. The altered building will have the following heights: 19.01 m measured to the top of the guard on the roof of the 4th storey; 20.85 m measured to the top of the north side stair roof parapet; 20.85 m measured to the top of the south side stair roof parapet; 21.74 m measured to the top of the pergola structure on the rooftop; 23.32 m measured to the top of the elevator overrun.

Conditions

1. No projecting balconies are permitted on the west edges of the ground and second storeys.

2. All west-facing decks located on the third and fourth storeys must be constructed with a railing treated with Jacob webnet – Metal Mesh that is permanent, located on the west edges of the decks to a minimum height of 1.17 m, measured from the floor of the decks.

3. The west-facing deck located on the rooftop must be constructed with a railing treated with Jacob webnet – Metal Mesh that is permanent, located on the west edge of the rooftop to a minimum height of 1.07 m, measured from the floor of the rooftop.

4. The third and fourth storey decks must also be constructed with a raised permanent planter box that is to be located on the west edge of these decks. It shall have a height of 0.1m and a depth of 0.305m.

5. All of which must provided in accordance with the architectural plans prepared by Studio VAARO, dated 2024-10-15.