Keciyolu (Re), 2023 ONTLAB 156

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-11-21

2022 238761 S45 03 TLAB

Keciyolu (Re), 2023 ONTLAB 156

DECISION AND ORDER

Issuance Date:

November 21, 2023 and minor errors corrected November 22, 2023

PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s):

SARO KECIYOLU KARMEN LEANNE LAMER

Applicant(s):

GABE FARAONE

Property Address:

74 NIAGARA ST

COA File No.:

A1379/22TEY

TLAB Case File No.:

23 153480 S45 10 TLAB

Hearing Date(s):

November 7, 2023

Decision Delivered By:

TLAB Panel Member T. Yao

REGISTERED PARTIES AND PARTICIPANTS:

People Type

Representative

Applicant/ Appellant

S. Keciyolu, K. Lamer

M. Cara, R. Barron

Participant

D. Frattini

Party

T. Scott

INTRODUCTION AND CONTEXT

1Ms. Lamer and Ms. Keciyolu (whom I will call “the Owners”) wish to use a house at 74 Niagara St for a mixed use commercial and residential building. They will add new space as shown in Figure 1, by means of a “bump-up”; no new foundations are necessary or possible. To accomplish this, the Owners request the variances in Figure 2. On May 10, 2023, the Committee of Adjustment refused the variances; the Owners appealed and so this matter came to the TLAB for a new hearing.

2Ms. Scott and Mr. Frattini opposed the variances. They are the unrelated owners of the two side-by-side Wellington St homes abutting 74 Niagara (See Shadow Study Figure 5).

Figure 1. cross section of proposal

Figure 2. Variances sought for 74 Niagara St

Required/Permitted

Proposed

From By-laws 332-2006 & 461-2006

1

Side yard setback for rear part of building

7.5 m

0.08 m from the side (west) lot line and 0.87 m from the side (east) lot line.

2

Rear yard setback

7.5 m

1.03 m from the rear (north) lot line. [my note: this appears to be for an existing first floor rear wall and is considered an existing nonconforming condition)

34

Depth

17 m

22.45 m

4

A portion of the third floor is above the angular plane

Variances from By-law 438-86 (based on R3 Z1.5 zoning)

5

GFA

1.5

2.2378 (originally 2.51)¹

6

Side yard (same as variance 1)²

7

Rear Yard (same as variance 2)

8

Second storey addition depth

17 m

22.45 m (originally 27.21 m)

9

Maximum balcony projection beyond main walls

1.5 m

The rear third storey balcony will project 3.05 m; the rear second storey balcony will project 1.52 m

10

Parking spaces

3

Zero (but there are two licenced boulevard parking spaces that do not qualify as a “legal” parking spaces under the zoning)³

11

This is a reformulation of variance 8

The project

3The present building contains two dwelling units; one on the ground floor/ mezzanine, plus a small studio apartment on the second floor. The Owners propose to delete this studio apartment and create two new apartments on an expanded second floor. A third unit would encompass an entirely new third floor. The ground floor and mezzanine would be gutted and reconfigured to contain the business and related uses (hallways, bathrooms etc.).

4To sum up:

Third floor – one 3 BR apartment

Second floor - one 2 BR apartment and one 1 BR apartment

Mezzanine – four cubicles or (marked as offices by the architect), plus an area that is open to below to create a high ceiling on the ground floor;

Ground floor – reception, five cubicles, kitchen.

THE LEGISLATIVE AND POLICY FRAMEWORK

5In carrying out its responsibilities under the Planning Act, the TLAB shall have regard to matters of provincial interest (Planning Act) as well as being satisfied that the development is consistent with the Provincial Policy Statement and conforms to the Greater Golden Horseshoe Growth Plan. These documents provide overall support for additional rental housing in settlement areas such as the City of Toronto, such as is proposed.

6The variances must also comply with s. 45(1) of the Planning Act, applicable case law, and must individually and cumulatively meet all of the four tests:

• maintain the general intent and purpose of the two Official Plans;

• maintain the general intent and purpose of the three Zoning By-laws;

• be desirable for the appropriate development or use of the land; and

• be minor.

7The Owners have been told that there are some variances needed from the former City of Toronto, 438-86 (City-wide but not including Scarborough, North York etc. the “86” indicating it is some 40 years old). Variances 1 to 4 are to By-laws 332-2006 and 461-2006. These are site-specific zoning by-laws (covering the area between Queen and the Gardiner, west of Bathurst St), meaning that these two zoning by-laws have the same force as City wide by-laws but only apply to a part of the City. Although Figure 2 contains 11 rows, there are only eight different variances.

8These by-laws were passed in 2006, the same time as the City-wide Official Plan and Garrison Common North Special Area Official Plan, (discussed below). Thus, there are two Official Plans and three zoning by-laws all of whose intents have to “be maintained” for the variances to be authorized. In interpreting the 2006 zoning by-laws it helps that they cover the same area and were passed at the same time as the Garrison Official Plan and it is thus reasonable that Council, the common author, may be presumed to have the same vision for this area of Toronto and the intents of the Official Plans and zoning converge.

Right to develop

9The obligation is on the Owners to demonstrate to the decision-maker that the tests are met on the balance of probabilities; there is no right to a variance.

EVIDENCE

10I heard from three witnesses: Mr. Romano, the planner, whom I qualified as able to give opinion evidence in land use planning. In addition, I heard from Ms. Scott and Mr. Frattini, who testified on their own behalves. They did not call a planner and I permitted both to ask questions of Mr. Romano.

ISSUES AND ANALYSIS

11I grant the variances for two main reasons:

• broad support by the City’s Official Plan for new rental housing;⁴ and

• the existing Niagara neighbourhood already has a mix of uses and building shapes, within which this proposal would “fit in”.

In my view the key issues are the density, the architectural details at the rear and the tests of minor and desirable.

Area is complicated physically and policy-wise

Figure 3: Official Plan Schedule Urban Structure (Note: terms like “Downtown” are technical terms used by the Official Plan)

14The site is located west of Bathurst and south of King as shown on the above Official Plan map. Downtown (orange), Avenues (brown) and Employment (blue) are areas marked for growth. Although a “Neighbourhood” in the City’s Official Plan, is a designation where stability is more prized, 74 Niagara is surrounded by planning areas where growth is to be encouraged.

15The neighbourhood is urban. Niagara St residents can walk or take short public transit rides to Queen St West (fashion, fabrics and restaurants), the CNE, sports venues, Chinatown and the waterfront. Mr. Frattini himself lives besides a film editing business, next to a long blank wall, and Ms. Scott says that 74 Niagara St was an industrial building when she moved in, thirty years ago. It has now been converted to residential. This is not a suburban neighbourhood and it is experiencing planned intensification.

16Just east of Bathurst in the “orange” area, a half a block away, there are 20 storey high rises.

17Niagara St was estimated by Mr. Romano to be:

20 % low rise, (like Ms. Scott’s house);

60% mid rise like the “Essery”, a 5-storey condo across the street (under construction, 45 units);

20% industrial or institutional, such as Fu Sien Tong Buddhist temple, 181-185 Niagara St.

In short I find a variety of densities, uses and tenure, which is an objective of the Garrison Plan. ⁵ In addition, the City wide plan and recent zoning amendments (laneway housing, garden suites, fourplexes) have made it clear there is some urgency to the word “tenure” which implies housing for which there is more than one dwelling unit per lot⁶, which this development fulfils, by reason that the building’s expansion is to be mostly devoted to new rental housing.

The proposed business

Figure 4. Tight Clinic website

14The Owners operate Tight Clinic, which offers to the public “nonsurgical facelifts and laser treatments”, and I gather that this will be either a relocation or new branch of the business. The City’s plan examiner took opposite positions on whether is permitted by the R3 zoning. On July 13, 2023, he said “no”; on September 7, 2023, he said “yes”. The Zoning Examiner is now not requiring a use variance.

15I requested that Mr. Cara (lawyer for the Owners) furnish an excerpt from the website (Figure 4, above), which I am prepared to accept, despite it not being evidence given under oath.⁷ The information is public knowledge, and Mr. Cara is an Officer of the Court and can be relied on not to mislead the TLAB. The way clients and tenants will get to the site is relevant to assessing for example, the parking space variance. I infer from the photographs that parking is limited; Mr. Frattini has a pad and Ms. Scott does not and I am informed by Mr. Romano that this is a “transit rich” area and from the previous description of the neighbourhood, there are opportunities to walk and cycle to everyday needs. The City’s transportation department has not objected. On this basis, I find that the proposal does not create unacceptable adverse impacts, which is part of the test for being “minor” and “desirable”.

Rear privacy screens and density

16Since the neighbours abut the rear lot line of 74 Niagara, their concerns were mostly, (but not completely), about the rear of the development. Ms. Scott and Mr. Frattini objected to the two new windows and door in the existing one- storey rear wall. It is only a metre from their property line, but the windows and door do not trigger a variance. The Owners have agreed to install frosted glass in the windows and shield any light fixture, which might alleviate some concerns.

17If I heard correctly, Ms. Scott felt that the existing one storey rear wall should now be relocated to the proper setback of 7.5 m away. If this is what she said, this is an incorrect understanding of the Planning Act, that “grandparents” already-built rear walls.⁸ As an administrative matter, the plan examiner sometimes asks applicants to include these on their “shopping list”, of variances and the Owners did so for variance 2. I therefore reject this concern since the Owners are entitled to maintain this nonconforming rear wall, whether or not they proceed with development plans.

18Ms. Scott was further concerned that persons on both terraces could look into her rear yard. I find that the Owners have adequately addressed this through the setbacks and screenings. She was also concerned that persons on stairs could also sit on the steps, and look into her rear yard. In my view, this is unlikely to occur very often, and I decline to order additional screening for this reason.

19I turn now to Mr. Fattini’s concerns, principally density (which is the same as Floor Space Index). Density is the gross floor area divided by the lot area, the proposal will increase the density from 1.27 to 2.24 FSI, (1.5 permitted). There are other industrial type buildings, including 74 Niagara, that are built lot line to lot line, engendering a higher density than for the Frattini house, which has a generous backyard. There are two other higher density examples:

• The “Essery”, a 5 storey, 45 units, 5 storeys, density 2.68, with two towers at the rear⁹; and

• 577 Wellington, 2.55 density.

Both are adaptive reuses of an existing building.

Key provision of the Official Plan

20The development must respect and reinforce a number of enumerated characteristics in the neighbourhood¹⁰. I conclude the density applied for here would respect the densities in the neighbourhood— in that it is in the range of densities granted for similar redevelopment applications. It would also reinforce this character in that an over density of this magnitude would not introduce a new and destabilizing built form.

21The Official Plan and zoning are tied by virtue of commentary in the Official Plan and the above discussion on the convergence of the Garrison Plan and site-specific zoning bylaws. Accordingly, I find the intent of the zoning bylaws are met.

Shadow Study

Figure Shadow Study, Mar 21, 11:18 AM (discussion on next page)

14Chapter 2.1.3 (Built Form) of the Official Plan requires that proposal provide an appropriate building shape, “scale and massing”.¹¹ The shadow study above (not a requirement but supplied to show the Owners’ due diligence) shows the shadows of the present two storey structure’ cast shadow is nearly identical to that for the proposed structure. There is some additional shadow on 68-70 Niagara (right neighbour), but that neighbour has not objected. I conclude that the intent of s. 2.1.3 is maintained by this proposal, that is, it maintains the general intent and purpose of the Official Plan and zoning.

Conclusion

15I find all the tests under the Planning Act have been met.

DECISION AND ORDER

16The variances in Figure 2 are authorized on the following conditions:

1. The existing tree in the front yard will be protected.

2. The parking spaces in the front yard shall have permeable paving.

3. The owner shall submit a complete application for a permit to injure or remove a privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.

4. The proposed development shall be constructed substantially in accordance with the following plans prepared by GPF Design Services Inc. (revision date July 5, 2023):

A. Proposed Site Plan Drawing SP1.02;

B. Proposed South Elevation Drawing A3.01

C. Proposed North Elevation Drawing A3.02;

D. Proposed East Elevation Drawing A3.03; and.

E. Proposed West Elevation Drawing A3.04;

And for greater clarity, this “substantially in accordance condition in 4. does not apply to any interior elements of the proposed development notwithstanding they are depicted on the plans

5. The Plans shall contain the following:

A. The rear windows located at the ground and mezzanine levels shall include frosting for the lower one-half of each window; and,

B. Exterior lighting that is installed at rear (north) walls shall be directed downwards and shall have a timing device, e.g. for ten minute intervals, etc. The ground floor light, if any, may be installed with a motion detector.¹²

T. Yao

Panel Member

Footnotes

1. 1“Originally” refers to a first iteration of the Owners’ plans.
2. 2By-laws 332-2006 and 461-2006 duplicate some of the requirements of 438-86. I assume to avoid having to cross reference the two documents, [My note]
3. 3The plan examiner advises the Owners that they must obtain an annual license for the two boulevard parking spaces.
4. 4What is needed is a healthier balance among high rise ownership housing and other forms of housing, including purpose-built rental housing, affordable rental housing and affordable low-rise ownership housing for larger households with children and multi-family households. (Official Plan, Chapter 3)
5. 5[5] 2. MAJOR OBJECTIVES -- 2.1 New development within Garrison Common North will: . . .c) include a variety of land use and densities including community services and facilities, so that development can respond to changing market demands over time and provide services for new residents and tenants; d) provide for a range of housing types in terms of size, type, affordability and tenure, to encourage households of all sizes to locate within Garrison Common North; . . .
6. 6The current production of ownership housing, especially condominium apartments, is in abundant supply. What is needed is a healthier balance among high rise ownership housing and other forms of housing, including purpose-built rental housing, affordable rental housing and affordable low-rise ownership housing for larger households with children and multi-family households. . .More than half of Toronto households rent, yet little new affordable rental housing is being built. . . We need to address . . .• Stimulating production of new private sector rental housing supply (Official Plan, ch 3.2.1 Housing
7. 7The TLAB can depart from strictly following its Rules of Practice and Procedure (Relief and Exceptions to the Rules -- 2.12 The TLAB may grant all necessary exceptions to these Rules, or grant other relief as it considers appropriate, to enable it to effectively and completely adjudicate matters before it in a just, expeditious and cost-effective manner.). For example, I heard from the neighbours even though they did not file any witness statements, etc.
8. 8Excepted lands and buildings
   (9) No by-law passed under this section applies,
   . . .(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8 (1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8 (10) of that Act. (Planning Act 34 (9))
9. 989-109 Niagara Street (or the "West Condos") includes two towers that are 14 and 12 storeys in height that are connected by a 5-storey podium and contain a total of 272 units; and 90 Niagara Street (or the "Essery Building") includes a 5-storey building that will contain a total of 45 units. The density for the Essery is 2.68; while the density for the towers is not specified in the three quoted Committee of Adjustment decisions (2019-2021). However, at 14 stories these towers are plainly greater than 1.5.
10. 105. Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:
    c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties; . . .
    f) prevailing setbacks of buildings from the street or streets;
    g) prevailing patterns of rear and side yard setbacks and landscaped open space; [Official Plan] Since the existing foundations will be used, I find the setbacks and angular plan not to be an issue here.
11. 11Par 60h, Romano Witness Statement, referring to 3.1.2 Built Form section of the Official Plan.
12. 12I have departed from the suggested wording. If this causes difficulty would Mr. Cara contact me, copying Ms. Scott and Mr. Frattini.