Toronto (City) v. 2265 Keele Street Holdings Incorporated, 2023 ONTLAB 99

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-06-05

23 114261 S45 05 TLAB

Toronto (City) v. 2265 Keele Street Holdings Incorporated, 2023 ONTLAB 99

DECISION AND ORDER

Issuance Date:

June 5, 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):

City Of Toronto

Applicant(s):

Ida Evangelista

Property Address:

2265 Keele St

COA File No.:

22 227373 WET 05 M (A0568/22EYK)

TLAB Case File No.:

23 114261 S45 05 TLAB

Hearing Date(s):

June 1, 2023

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

I. Evangelista

Appellant

City of Toronto

C. McKeich

Expert Witness

B. Bulger

Expert Witness

M. Premru

INTRODUCTION AND CONTEXT

1. 2265 Keele Street Holdings Inc. (the “Owner”) is the owner of 2265 Keele Street (the “Property”), which is presently improved with a commercial building having retail commercial floor space on its ground floor and offices on its second floor.

2. The Property is zoned E1.0 under Zoning By-law 569-2013. Section 60.20.20.10.(1) of By-law 569-2013 does not permit dwelling units in a mixed-use building in an E Zone.

3. The Owner made application to the Committee of Adjustment (the “Committee”) for variance relief in order to permit the conversion of the existing second storey into nine residential units and two offices.

4. The Committee approved the application.

5. A Planning Department Staff Report was submitted to the Committee prior to the Committee hearing setting out the fact that the Property is within an Employment Lands designation under the Official Plan (the “OP”) and that there are explicit policies which do not support the introduction of residential uses on Employment Lands. The Staff Report recommended against approval of the application.

6. In light of the Planning Department position, the City of Toronto (the “City”) appealed that Committee approval decision to the Toronto Local Appeal Body (the “Tribunal”).

7. In accordance with the Tribunal’s Rules of Practice and Procedure, the City filed document disclosure in advance of the Tribunal hearing as well as expert witness statements prepared by Bram Bulger and Matthew Premru.

8. The Owner/Applicant did not file any document disclosure with the Tribunal nor any witness statements.

9. There was no appearance by the Owner/Applicant at the Tribunal hearing.

THE LEGISLATIVE AND POLICY FRAMEWORK

10. Section 45(1), Planning Act

In considering applications for variance from the Zoning By-law, the Tribunal must be satisfied that the application meets all of the four tests under s. 45(1) of the Planning Act. The tests are whether the variances:

• maintain the general intent and purpose of the Official Plan;

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

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

• are minor.

SUMMARY OF EVIDENCE

11. Mr. McKeich, counsel for the City, had received a communication from the Applicant prior to the Tribunal hearing to the effect that the Owner would not be pursuing defence of this Committee decision, which proved to be true based upon their absence at the Tribunal hearing.

12. In light of this, as an appeal hearing before the Tribunal is a de novo proceeding and there is a duty on the applicant to marshal evidence before the Tribunal to justify the approval of the requested variance relief, Mr. McKeich suggested that the Tribunal could dispose of the appeal by allowing it due to the failure of the Applicant to discharge that duty.

13. The Tribunal acknowledged that this was indeed a path to dispose of the appeal but as the City was present with its two witnesses and as the Tribunal found the decision of the Committee so extraordinary against the policy background, the Tribunal asked Mr. McKeich to call the City’s witnesses to speak to their witness statements.

14. Mr. McKeich first called Bram Bulger. Mr. Bulger is a Planner in the Community Planning Section of the City Planning Division. He was qualified by the Tribunal to offer expert opinion evidence on land use planning in this proceeding.

15. Mr. Bulger described the physical context within which the Property is located. Keele Street functions as a divider between the residential uses to its west and the employment uses to its east. The lands east of Keele Street, including the Property, are designated as Employment Lands under the OP. That east side is defined by a mix of commercial, retail, and office uses along Keele Street, with a mix of employment-related uses further to the east of Keele Street, including the Ingram Waste Transfer facility, a major waste management facility, located on Ingram Drive.

16. Mr. Bulger provided an overview opinion as follows.

17. His view is that the proposed development does not maintain the general intent and purpose of the City of Toronto Official Plan. The proposed residential use does not support the economic function of Employment Areas and would adversely affect the long-term viability of the employment area.

18. Introducing a use that is not permitted in the Employment Areas designation is considered a conversion of the land from the Employment Areas designation to another designation and can properly only be effected at the time of a city-initiated municipal comprehensive review (MCR) through a conversion request and subsequent Official Plan and Zoning By-law Amendment applications. These applications and review processes allow staff to consider the impacts that introducing a sensitive use may have on the neighbouring operating businesses, as well as generating an understanding of the potential adverse effects that a sensitive use may experience from those neighbouring and operating businesses.

19. The development proposed by this application does not maintain the general intent and purpose of City of Toronto Zoning By-law 569-2013. The Property is located within the Employment Industrial Zone, which permits a range of industrial, commercial and office uses, including a variety of manufacturing uses but not residential use.

20. Introducing a use that is not permitted in the Employment Industrial Zone is counter to the intent and purpose of Zoning By-law 569-2013.

21. The proposed development is not desirable for the appropriate development or use of the land, nor is it minor in nature. A residential use is not compatible with employment lands and may create land use conflicts with the permitted industries in the area, harming their ability to operate and reducing their potential to expand, potentially resulting in the destabilization of the employment area as a whole.

22. He concluded with the opinion that the application in this instance did not meet any of the four tests of Section 45(1) of the Planning Act.

23. Mr. Bulger also spoke to the relevant polices under the Provincial Policy Statement, 2020 and the Growth Plan for the Greater Golden Horseshoe, 2020, and summed this up by saying that Employment Areas are a finite land resource recognized by the Province as areas in need of protection and preservation, and that the Provincial policy and legislative framework make it clear that protection and preservation involves prohibiting residential land uses within employment areas to ensure that these areas maintain their operational and economic viability in the long term.

24. Mr. Bulger advised the Tribunal of Official Plan Amendment 591 (“OPA 591”), which was adopted by City Council on July 22, 2022 as part of the current Municipal Comprehensive Review required to conform to the Growth Plan. It is presently before the Minister of Municipal Affairs and Housing for approval and thus not controlling on this appeal but is confirmation of Council’s intent on the matter of protection of employment lands.

25. OPA 591 reinforces that Employment Areas are to be used for employment uses. It explicitly prohibits residential use in Employment Areas. This policy direction ensures the protection and preservation of these lands, so that these uses can operate, expand, and seek further investment with a degree of certainty in the stability of their operations.

26. Mr. McKeich then called Matthew Premru. Mr. Premru started his career as a development/land use planner with the City but is currently an Economic Development Officer in the City's Economic Development and Culture Division (EDC), Business Growth Services - Business Retention and Expansion Unit with a total of 9 years of experience in this capacity. He was qualified by the Tribunal to offer opinion evidence with respect to economic development.

27. Mr. Premru provided background on the employment lands base in the urban land structure of the City and its role in promoting the economic viability of the City.

28. He advised that Employment lands are a finite and an increasingly rare resource as there are no opportunities to further expand Toronto’s overall land base. Designated employment areas provide the only viable location for certain types of employment activities that require separation from sensitive uses due to noise, odour, vibration or traffic.

29. He further advised that the City lacks buildings and land available for sale or lease that are suitable for industrial employment purposes. He relays that the real estate industry describes current conditions as a 'landlord's market' with new records in terms of industrial rental rate highs and space availability lows. There has been a consistent downward trend since 2009 when the industrial availability rate for the GTA market was approximately 8% (CBRE Marketview, Toronto Industrial, Q1 2017) compared to the current figure of 1.3% in the City of Toronto (Avison Young, Industrial Market Report, Greater Toronto Area, Q4 2022). This is less than what would be created by a normal "churn", or turnover of normal business activity. This reflects an unprecedented 'tight' industrial real estate market.

30. He says that having a sensitive use occupy an employment land parcel diminishes the viability of employment lands for industrial use and there is a lasting impact on the City's economy. The impacts include losses in employment opportunities, reduction in economic activity and an erosion in the property tax base considering that the industrial tax rate is approximately 2.8 times greater than that of residential.

31. He concludes on this point by saying that this proposal represents the loss of a prime and rare, highly sought after business location, decreases the potential range of uses and the intensity of activity on those lands by imposing a sensitive use, and compounds an already historically low employment land supply market.

32. Mr. Premru advised of the negative effect of introducing a sensitive use as proposed here on the holders of Environmental Compliance Approvals in the vicinity.

33. Introducing new sensitive land uses such as residential into the Employment Area has the potential to increase the level of complaints regarding noise, odour and vibration toward area industry. These complaints may impact the Environmental Compliance Approvals (ECA) of area industry issued by the Ministry of Environment, Conservation and Parks (MoECP). An ECA provides a business with authorization to discharge regulated contaminants (solid, liquid, gas, odour, heat, sound, vibration, or radiation) that may cause an adverse effect to the natural environment (i.e. air, water). An ECA stipulates prescribed discharge limits and conditions of operation which in part may be affected by proximity to sensitive land uses. Companies operating under ECAs are commonly found throughout the City's Employment Areas and are an essential part of their core operations/activities.

34. Several active industrial operations are located in the immediate vicinity of the Property, including the immediately adjacent approximately 10.5 hectare (26 acre) City of Toronto Ingram Waste Transfer facility, one of the largest of its kind in the municipality. With growing demand for municipal waste management and other essential facilities it is important to maintain the ability for future expansion. The proximity of the proposed residential units would restrict the potential range of options for intensified activity at this site, and will increase the likelihood of complaints. Registered complaints may affect MoECP Environmental Compliance Approvals and may result in restrictions to other important business practice matters such as hours of operation, outdoor activities, choice of mechanical equipment, etc. The operator may also be affected by the imposition of new costly mitigation measures.

35. He further identified the following properties which may be similarly adversely affected in this regard:: • 9 Densley Avenue (Gertex Hosiery - 0 metres from subject property, immediately adjacent to east); • 75 Densley Avenue (International Fence and Railing Inc - approximately 50 metres from subject property); • 1 Sheffield Street (Ontario Sewer Services Inc - approximately 490 metres from subject property); • 105-111 Ingram Drive ((Optimum Disposal/Environmental (GFL Environmental) - approximately 490 metres from subject property)); and • 103 Ingram Drive (Ingram Asphalt Inc - approximately 570m from subject property).

36. On the basis of the foregoing, Mr. Premru recommended against approval of the requested variance relief.

CONCLUSION

37. Based upon the foregoing evidence, the Tribunal is completely satisfied that this variance application is not consistent with the Provincial Policy Statement, 2020 and does not conform with the Growth Plan for the Greater Golden Horseshoe, 2020.

38. Furthermore, that evidence also fully persuades the Tribunal that the proposed variance fails all four tests under Section 45(1) of the Planning Act.

DECISION AND ORDER

39. The Tribunal ORDERS THAT the appeal of the City is allowed, the requested variance relief is denied and the decision of the Committee is set aside.

G. Swinkin

Panel Member