Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2024-03-04
23 172203 S45 10 TLAB
The Black Hoof Inc. (Re), 2024 ONTLAB 196
DECISION AND ORDER
Issuance Date:
March 4, 2024
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):
THE BLACK HOOF INC
Applicant(s):
WEIRFOULDS LLP
Property Address:
171 GORE VALE AVE
COA File No.:
23 129372 STE 10 MV (A0334/23TEY)
TLAB Case File No.:
23 172203 S45 10 TLAB
Hearing Date(s):
January 17, 2024
Decision Delivered By:
TLAB Vice-Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Applicant
WEIRFOULDS LLP
Appellant
THE BLACK HOOF INC.
R. KEHAR
Party (TLAB)
J. RUNGE
M. MAZIERSKI
Participant
A. M. FELTON
Participant
F. VILKIEKAS
Participant
D. CALISTI
Participant
A. CORMACK
Participant
T. J. PETERS
Participant
M. WASSON
INTRODUCTION AND CONTEXT
1This is an Appeal of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for variances for the property known as 171 Gore Vale Ave (subject property).
2The purpose of the application is to permit the continued operation of a ground floor restaurant patio, located in the rear yard of a semi-detached building.
3The subject property is located in the Trinity-Bellwoods neighbourhood of the former City of Toronto. It is designated Neighbourhoods in the City Official Plan (OP) and zoned ‘Commercial Residential’ (MCR) T2.5C1.0R2.0 under the former City of Toronto Zoning By-law 438-86 (By-law).
4Subject to conditions, similar variances were previously granted for a fixed period by the then Ontario Municipal Board in 2010, and for a further period by the COA in 2013. The most recent approval lapsed in 2018, although use of the patio has continued.
5The following variances are requested:
Former City of Toronto Zoning By-law 438-86
- Section 8(2) 7(a)(i) A
A patio shall not be located in the rear yard of a building (any portion of the lot located between the rear wall of a building and the rear lot line) if the lot abuts a lot in an R district or that is separated from a lot in an R district by a distance of less than 10 m.
The patio is located within the rear yard a lot that abuts an "R" district (169 Gore Vale Avenue and 174 Bellwoods Avenue).
- Section 4(3)(A)
A minimum of one parking space is required.
No parking will be provided.
- Section 8(3) Part II 4(A)
No person shall erect a building or structure on a lot in an MCR district, unless the building or structure is set back a distance of at least 7.5 m from a lot in a residential or park district.
The raised platform is located 0 m from a lot or portion of a lot in an R district.
6I advised those present at the Hearing that, in accordance with Council direction, I had visited the site and the surrounding area and that I had reviewed the pre-filed materials in preparation for the hearing of their evidence.
THE LEGISLATIVE AND POLICY FRAMEWORK
7Provincial Policy – S. 3
A decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2020 Provincial Policy Statement (PPS) and conform to the Growth Plan for the Greater Golden Horseshoe (Growth Plan) for the subject area.
8Planning Act: Variance – S. 45(1)
In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the 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
9A summary of evidence is presented here for the purpose of providing some context for the following sections of this Decision. All of the evidence and testimony in this matter have been carefully reviewed and the omission of any point of evidence in this summary should not be interpreted to mean that it was not fully considered, but rather that the recitation of it is not material to the threads of reasoning that will be outlined in the Issues and Analysis section below.
GALBRAITH
10Mr. Galbraith was qualified as an expert land use planner and submitted evidence in support of the variances on behalf of the Applicant/ Appellant.
11In accordance with the direction of Policy 4.1.5 of the Official Plan, Mr. Galbraith identified a neighbourhood study area and the immediate context of the subject property.
12Mr. Galbraith described the property and context as follows:
The subject property is a corner lot, with frontage on both Gore Vale Ave and Dundas St W. The By-law identifies Gore Vale Ave as the front of the property, although the property is used for commercial activity (“Cocktail Bar”) and is accessed from Dundas St W.
The mixed use areas along Dundas St W consist primarily of at-grade commercial/ retail uses, including numerous eating establishments that contain outdoor patios.
The southern-most wall of the patio, adjacent to the residential neighbourhood, is comprised of a 2m high wood board privacy fence.
The patio occupies what was previously a parking spot. It is small; approximately 2.97m by 5.5m. The seating area is approximately 16.5m2.
The subject property is designated Neighbourhoods in the Official Plan, unlike the majority of the properties between Gore Vale Ave and Bathurst St, fronting onto Dundas St W, that are designated Mixed Use Areas.
Figure 1: Ex2, Applicant's Visual Evidence
13The property is subject to the former City of Toronto Zoning By-law 438-86 and not the harmonized, amalgamated City of Toronto Zoning By-law 569-2013. Mr. Galbraith did not know the reason for the property’s exclusion from the harmonized Bylaw.
14The Appellant requests that the variances be granted on a permanent basis and not be subject to a limited term. They propose to replicate the same conditions regarding amplified noise, smoking and hours of operation that were previously imposed in the 2012 variance approval. The current request is to allow a maximum seating capacity of 16 persons, which is an increase from the 12 persons maximum that was imposed as a condition of the previous approval. Finally, a new condition of approval is proposed to secure the construction of a fence/ barrier for sound attenuation purposes.
COULSON
15Mr. Coulson was qualified as an expert in acoustic engineering.
16He measured the ambient noise (at a location on the patio) to understand the background conditions and then assessed the noise source against these background conditions. (Exhibit 3).
17The City of Toronto Noise Bylaw1 was used to evaluate the potential effect on nearby residences of a crowd of 16 people using the patio. In his analysis, Mr. Coulson relied on the Noise Bylaw definition of “unreasonable and persistent noise”.
18Mr. Coulson concluded as follows:
Crowd noise from the patio is expected to fall below the ambient noise due to traffic (i.e., the Bylaw limit for amplified sound) within 5 meters of the edge of the patio under a conservative scenario of maximum capacity (16 patrons) and elevated vocal effort. As a result, the patio noise meets the City of Toronto Bylaw expectations (for amplified sound) for all backyards to the south excepting the immediately adjacent neighbours within 5 meters. As this approach under the Bylaw is for amplified sound, it is expected to be conservative relative to people speaking; amplified music is more noticeable due to its rhythmical and melodic sounds while people speaking lack this sound character.
19Mr. Coulson’s analysis assumed the most “conservative” scenario, i.e., the worst noise case. He advised that less than the full estimated noise level would be experienced by any of the neighbours because of intervening structures and only partial overlook from their second storey windows that would block some noise.
20A schematic of a fence with sound attenuation properties was submitted (Exhibit 4), the construction of which was proposed as an additional condition of approval. With this fence in place, Mr. Coulson did not see any potential for intrusive noise.
RUNGE
21Due to an administrative oversight, Ms. Runge’s Disclosure and Witness Statement were not posted to the City’s website, although the TLAB and other required persons had been circulated. I therefore did not have access to these documents prior to the Hearing. I heard Ms. Runge’s testimony and committed to reading the materials in detail after the Hearing, which I did.
22Ms. Runge detailed her experiences with the noise experienced from the patio. She submitted a detailed list of times and dates of her noise complaints and contacts with numerous regulatory officials.
23In relation to the condition that had been imposed by the COA limiting the operation of the patio from 11:00 am to 11:00 pm, she documented her ongoing complaints that the patio continued to operate beyond the 11:00 pm limit that had been imposed by the COA.
24Ms. Runge shared her frustrated attempts to gain assistance with her noise concerns from the City’s By-law enforcement division as well as the Alcohol and Gaming Commission of Ontario. In particular, she was informed that the sound of people talking, or shouting, was not included in the definition of unreasonable noise, and therefore was not subject to enforcement under the City’s Noise By-law.
25Ms. Runge was cross examined by Mr. Kehar about her opinion of the “Café T.O” program, which permits outdoor dining on sidewalks and curb lanes. She noted that a patio on the street would be 6m further away from their homes and the question for the neighbours was whether the Applicant should “get permission to remove our protection”, which I take to mean the protection afforded by the provisions in the Zoning By-law that are proposed to be varied in this application.
PARTICIPANTS
26Participants Cormack, Peters and Wasson talked about the disruption and disturbance to their lives that is caused by the operation of the patio. The conversations on the patio can be loud and profane, while the patio operates on school nights and disturbs the sleep of the residents.
27Ms. Peters’ bedroom window is within 5m of the patio. The noise from the patio disturbs the sleep of her young children.
ISSUES AND ANALYSIS
28I accept Mr. Galbraith’s evidence that the proposal is consistent with the 2020 Provincial Policy Statement and conforms to the Growth Plan for the Greater Golden Horseshoe for the subject area.
VARIANCE TEST 1: MAINTAIN THE GENERAL INTENT AND PURPOSE OF THE OFFICIAL PLAN
29Mr. Galbraith conducted a thorough review of the relevant Official Plan policies.
30He noted that although the property is designated Neighbourhoods in the Official Plan, it is still identified as Avenue and Priority Transit Segment in the Official Plan.
31Chapter 2.2.3 of the Official Plan:
Avenues are important corridors along major streets where reurbanization is anticipated and encouraged to create new housing and job opportunities while improving the active transportation environment.
32OP Policy 4.1.3 provides that:
Small-scale retail, service and office uses support daily life in Neighbourhoods and encourage complete, connected communities, contributing to amenity, sustainability, equity, diversity and vitality. Small-scale retail, service and office uses are permitted on properties in Neighbourhoods that legally contained such uses prior to the approval date of this Official Plan.
33The Neighbourhoods section of the OP requires that development and redevelopment within Neighbourhoods should be respectful of the existing neighbourhood context and should reinforce the existing physical character of buildings, streetscapes and open space patterns.
34In Mr. Galbraith’s opinion, the proposal meets the criteria outlined in OP Policy 4.1.5 and that the patio will respect and reinforce the existing physical character of the Neighbourhood and that the proposal maintains the general intent and purpose of the Official Plan.
35I agree with Mr. Galbraith’s opinion evidence that the proposal meets the policy expectations of the Official Plan. It reflects the existing physical characteristics of the other nearby buildings on Dundas St W and contemplates a use that is consistent with the policies of the Plan, even as articulated for uses in the Neighbourhoods designation.
VARIANCE TEST 2: MAINTAIN THE GENERAL INTENT AND PURPOSE OF THE ZONING BY-LAW
36The subject property is unusual in that the OP designation and the applicable Zoning By-law differ from the other nearby properties on Dundas St W that are used for similar retail or service activities.
37It is worth noting that the intensity of the retail, service or commercial activity permitted in the Neighbourhoods designation is at a more limited scale than that contemplated for the Mixed Use Areas designation that applies to the nearby Dundas St W properties.
38Mr. Galbraith noted that the property is not subject to the current Toronto Zoning By-law 569-2013. He was unable to determine why the subject property, and a handful of nearby properties in proximity to it, were excluded from By-law 569-2013.
39I did not ask Mr. Galbraith during the Hearing whether the neighbouring Dundas St W properties, which were included in the harmonized By-law (569-2013), were subject to different separation distances from Residential areas. In the end, this question is an interesting one, but is ultimately not relevant. The principle of interpretation is that the drafter of the By-law was purposeful in differentiating this property from others. Whether the neighbouring properties are subject to similar, more stringent, or less stringent, separation provisions is not relevant to this particular test which focuses only on the general intent and purpose of the Zoning By-law applicable to this particular property.
NOISE
40The biggest issue for the opposing Party in this Hearing, and for the Participants, was the noise that is generated by the patio, and that they endure the noise daily from the middle of the day until late at night. Although privacy impacts were mentioned, concerns such as traffic, parking, odours etc. were not contentious.
41Mr. Coulson did a good job of explaining some of the principles of acoustic science, how sound travels, ambient noise levels and how sound decays from a point source. I found his evidence to be helpful in understanding noise levels that the patio would generate and how this could be experienced on the neighbouring properties.
42Mr. Coulson used the Noise By-law definition of “unreasonable and persistent noise” as an analytic threshold. He applied the Noise By-law standards for continuous amplified sound as a decibel benchmark. “Persistent” noise is defined in the Noise By-law as “any noise that is continuously heard for a period of ten minutes or more or intermittently over a period of one hour or more”.
43The Noise By-law references sources of noise such as the operation of construction equipment, motor vehicle noise (horns, revving of engines), and power devices such as chainsaws, lawn mowers and leaf blowers.
44I have confidence in Mr. Coulson’s conclusion that crowd noise from the patio would fall below the ambient noise level within 5 meters of the edge of the patio under a conservative scenario of maximum capacity (16 patrons) and elevated vocal effort. I also accept his expert opinion that a properly constructed fence would mitigate any “intrusive noise”.
45The test that I must apply, however, is not what constitutes a reasonable or unreasonable level of noise. My task is to discern the general intent and purpose of the Zoning By-law as articulated by the specific provisions that are sought to be varied in this case.
46One of the primary and originating purposes of a Zoning By-law is to manage conflicting land uses. That is, a zoning By-law is structured to address the potential impacts, like noise, of ongoing and permanent activities in proximity to one another. The Noise By-law, on the other hand, is framed to deal with disturbing noise that occurs on an occasional and probably infrequent basis. The Noise By-law, in my opinion, is a level of enforcement that is layered over, and in addition, to the land use separations and buffers that are contained within the land use planning instruments and the Zoning By-law in particular.
47It is pertinent that the Noise By-law specifically excludes people talking from the definition of “unreasonable noise”2, while protection from this kind of noise is a primary intent and purpose of the provision in the Zoning By-law that a patio shall not be located in the rear yard of a building if the lot abuts a residential lot, or if it is separated from such a lot by less than 10m.
PATIO USE
48The primary variance at issue in this matter is the first one that essentially addresses the patio use in relation to abutting residential lots.
Section 8(2) 7(a)(i) A
A patio shall not be located in the rear yard of a building (any portion of the lot located between the rear wall of a building and the rear lot line) if the lot abuts a lot in an R district or that is separated from a lot in an R district by a distance of less than 10 m.
49In this provision, the By-law recognizes that, as an outdoor use, the noise from a patio can be disruptive if placed directly beside a lot in the Residential district, even if that noise is in compliance with the Noise By-law. The intent of the provision is to separate any patio from residential lots by at least 10m. The purpose of the provision is to limit the location of patios to prevent impacts on residential properties from the noise from a patio (potentially loud conversations on a daily basis, late into the night).
50It is the Applicant’s evidence that the general intent and purpose of the Zoning By-law can be met with the construction of a noise-mitigating fence. I accept Mr. Coulson’s evidence that the proposed fence would mitigate the source noise from the patio to the level of the surrounding ambient noise. The level of ambient noise, however, is not the standard of the Zoning By-law. The overt intent of this provision of the By-law is that there be no (additional) noise resulting from the establishment of a patio if the lot is located abutting a residential lot.
51The neighbours in attendance at the Hearing unanimously described the noise from the patio as disruptive to their lives. A fence currently exists between the patio and the abutting residential lots, although it has not been built to the standard of the noise attenuating fence that is now proposed as a condition of approval.
52The Zoning By-law in this particular provision requires a separation of at least 10m from a residential lot for a patio to be established. A distance separation, sometimes referred to as a buffer, is an approach that is traditionally employed in Zoning By-laws and other noise-related regulations. This approach results in a permanent and unalterable way of buffering impacts, unlike a physical structure that can deteriorate over time or be altered.
53Mr. Kehar attempted to assure Ms. Runge and her neighbours that, as a condition of the approval (if granted), any failure to implement or maintain the fence would be a violation of the approval. It is fair to say Ms. Runge would not choose to rely on effective enforcement to sustain the quiet that she and her neighbours seek.
54Mr. Kehar noted that Ms. Runge did not live within 10m of the patio and that only one of the Participants in this matter, Ms. Peters, lives within 10m of the patio. I will note that there are three other residential properties within 10m of the subject property and that two of the four properties abut the subject property. The other half of the semi-detached building that hosts the restaurant/ bar is located on the immediately abutting property on Gore Vale Ave.
55The configuration of two abutting residential lots, four lots within 10m, and a pattern of small lots in a mature dense neighbourhood would, in my mind, very closely describe the kind of sensitive configuration that this provision of the By-law guards against. Put another way, if the provision prohibiting a patio does not prevail in this situation, where would it, as an intentional and purposeful provision, hold?
56I am sympathetic to the Applicant’s emphasis on all the objectives of the Official Plan regarding economic health and encouraging vibrancy. Venues such as the Applicant’s undoubtedly add to the broader vitality of the City as a whole. The Zoning By-law, however, attempts to balance the concerns of the broader community and those of the people directly impacted. It is not for me to decide whether the By-law is correct, or reasonable, but to discern the general intent and purpose of the in-place By-law and consider the application in that light.
57I find that the requested variance to Section 8(2) 7(a)(i) A of former Toronto Zoning By-law 438-86 does not maintain the general intent and purpose of the Zoning By-law.
58My conclusion regarding this test is sufficient for the application to be refused. To gain approval, a variance must meet all four tests. Having decided that the first variance allowing a patio use will be refused, I find that the remaining two variances are not viable as they are dependent on the approval of the patio use. I note, however, that the parking space and the patio structure itself were not the subject of opposition during the Hearing.
VARIANCE TEST 3: MINOR
59The courts have established that the test of “Minor” is not that there be no impact, but that the imputed impact rises to the level of being an undue adverse impact of a planning nature.
60Mr. Kehar suggested that the issue of noise from a restaurant/ bar should be considered analogous to the way that issues of shadow are considered in a residential neighbourhood. In a growing and densifying City, shadowing and some overlook of other properties is to be expected. Similarly, residents who live near a historic “Main Street" like Dundas St, he suggested, should expect to live with a level of activity and noise that is different than property in the heart of a suburban subdivision, for example.
61This test is intended to address the level of impact on the neighbours and assess whether the resulting impact is beyond a legitimate adjustment and rises to the level of being an undue adverse impact of a planning nature. This is indeed what Ms. Runge and the Participants have claimed.
VARIANCE TEST 4: DESIRABLE
62There is little question that the Applicant’s restaurant/ bar contributes to the vibrancy of the street and the broader neighbourhood as contemplated by the Official Plan.
63The benefits to the broader community and the business must however be balanced against the interests of the closest residential neighbours.
CONCLUSION
64I can agree with the applicant that the proposal supports one of the overall goals of the Official Plan; to create vibrant neighbourhoods that are part of complete communities. I can also agree from a broad policy perspective that a restaurant/ bar patio can add vibrancy to a community and may be considered desirable in that context. However, the Official Plan and the Zoning By-law are also constructed so as to protect more sensitive land uses from the intensity or impacts of other activities.
65In this case, I have found that the intent of the Zoning By-law is not maintained. It is on the basis of this test that the application for variances is refused.
DECISION AND ORDER
66The Appeal is dismissed. The variances sought are not authorized.
A. Bassios
TLAB Vice-Chair