Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
File: 24 139617 S45 20 TLAB
DECISION AND ORDER
Issuance Date: October 24, 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): PPIN ENTERPRISES INC.
Applicant(s): ARCADIS PROFESSIONAL SERVICE
Property Address: 756 Warden Ave
COA File No.: 23 198226 ESC 20 MV (A0206/23SC)
TLAB Case File No.: 24 139617 S45 20 TLAB
Hearing Date(s): September 25, 2024
Decision Delivered By: TLAB Vice-Chair Ana Bassios
REGISTERED PARTIES AND PARTICIPANTS:
Applicant: ARCADIS PROFESSIONAL SERVICE
Appellant: PPIN ENTERPRISES INC.
Representative: AIRD & BERLIS LLP BARRISTERS & SOLICITORS
Participant: VARIETY VILLAGE (C. YACCATO)
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 756 Warden Ave (subject property).
2The purpose of the application is to construct a new building with a bingo hall, restaurant and electronic gaming uses on the site.
3The subject property is located in the Golden Mile area of the former City of Scarborough.
4The subject property is designated General Employment Areas in the City Official Plan (OP). The majority of the site is zoned Industrial Zone M-361-913-991-1054, with a small westerly strip zoned MG-361-913-991-054 under Employment Districts Zoning By-law 24982 for the former City of Scarborough.
5REQUESTED VARIANCES
Clause VI, Subsection 1(a), Employment District Zoning By-law Number24982 (Golden Mile) Permitted uses in an industrial zone include: -Day Nurseries -Educational and Training Facility Uses -Industrial Uses -Marihuana Production Facility -Offices, excluding Medical and Dental Offices -Places of Worship -Recreational Uses Restaurant and games arcade (electronic gaming) is not permitted.
Clause VI, Subsection 2(a), Employment District Zoning By-law Number24982 (Golden Mile) Permitted uses in an industrial zone include: -Day Nurseries -Educational and Training Facility Uses -Industrial Uses -Marihuana Production Facility -Offices, excluding Medical and Dental Offices -Open Storage -Places of Worship -Recreational Uses Restaurant and games arcade (electronic gaming) is not permitted.
Clause V, Subsection 7.5.2, Employment District Zoning By-law Number24982 (Golden Mile) Parking spaces shall only be permitted in the side yards, rear yards, or enclosed within buildings, except that 5 parking spaces shall be permitted in the front yards or flankage yards for the first 15 m of front wall, plus 2 parking spaces for each 15m of front or flankage wall or part thereof. 15 parking spaces are permitted in the front yard. 346 parking spaces are proposed in the front yard. NOTE: Comstock Rd is considered the front yard.
4.Clause V, Subsection 24.(a), Employment District Zoning By-law Number24982 (Golden Mile) Games Arcades shall be prohibited except in City Centre Commercial Zone (CCC) and District Commercial Zone (DC), where specified on Schedule "C". The property is not zoned CCC nor DC, so games arcades and games machines are not permitted.
6I advised those present at the Hearing that I had attended at the site and the surrounding area and had reviewed the pre-filed materials in preparation of the hearing of their evidence.
THE LEGISLATIVE AND POLICY FRAMEWORK
[7] Provincial Interest - S. 2 A decision of the Toronto Local Appeal Body (TLAB) shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.
[8] Provincial 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.
[9] 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
10No Parties or Participants appeared in opposition to the application.
11Mr. Igelman was qualified as an expert in land use planning. He provided evidence in support of the application.
[12] Mr. Igelman advised as follows:
- The property is a corner lot that has road frontage on three sides. The Comstock Rd frontage is considered as the front lot line, even though the property has a Warden Ave address.
- Transportation staff, Economic Development and Culture staff and Community Planning staff recommended that the COA refuse the application.
- The primary vehicular access will be from Warden Ave, a “Major Arterial Road”. The primary entrance of the building will face Comstock Rd.
- Mr. Igelman characterized the area as an important and productive industrial area containing predominantly industrial and commercial uses.
- The variance for parking concerns the location, not the number of spaces that are to be provided.
13Mr. Igelman provided a comprehensive review of applicable provincial and Official Plan policies.
14It was Mr. Igelman’s advice that a bingo hall is permitted as of right under the Zoning By-law and that the primary zoning issue is the interpretation of City staff that the electronic component of the bingo activity has been interpreted to be a “games arcade”.
15A copy of an email from the Zoning Examiner confirming that a bingo hall is a permitted use under the Zoning By-law was provided following the Hearing.
16Mr. Igelman’s opinion is that the inclusion of an electronic gaming component and restaurant do not change the fundamental nature of the bingo hall use. The electronic component of the operation consists of equipment to facilitate electronic bingo only.
ISSUES AND ANALYSIS
17I accept Mr. Igelman’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.
18The Planning Act requires that I “have regard” to the decision of the COA. The reports of three staff departments raised serious concerns about potential impacts if the application were to be approved and recommended that the COA refuse the application.
19The City, however, did not seek status as a Party to this Hearing and therefore the concerns expressed by City staff to the COA could not be tested through the Hearing process. I must rely on the expert advice and evidence of Mr. Igelman, who was the sole witness.
20Variances 1, 2 and 4 relate to the permitted uses on the site. The variances are required to permit a restaurant and a ‘games arcade’ in conjunction with the bingo hall.
21The only variance related to the physical design of the site is the variance for the location of parking.
OFFICIAL PLAN
22Mr. Igelman advised that, in his opinion, the proposed “modern” bingo hall use, as well as the restaurant use are permitted uses within the General Employment Area designation of the Official Plan.
[23] OP Policy 4.6.3 says as follows: General Employment Areas are places for business and economic activities generally located on the peripheries of Employment Areas. In addition to all uses permitted in Policies 4.6.1 and 4.6.2, permitted uses in a General Employment Area also include restaurants and all types of retail and service uses.
24Mr. Igelman advised that the intent of the General Employment Area designation is to allow for a broader range of uses to provide a transition between the Core Employment Areas and other more sensitive uses. The intention, he said, was to provide for “a richness of services in these areas”.
25A restaurant is expressly permitted in the General Employment Area. I agree with Mr. Igelman that the scope of the wording “all types of retail and service uses” is broad enough that a bingo hall would fall within the intent of this policy.
Figure 1: Site Plan, EX 1
26Figure 1 shows the proposed site plan for the property. Comstock Rd is the defined front of the property and Variance 3 requests a variance to locate parking within what is defined as the front yard instead of in the rear, which in this case would be abutting Hymus Rd.
27On the basis of the photographic evidence submitted by Mr. Igelman, I agree that similar parking configurations are already found within the district.
28The intent of the limitation on front yard parking is to maintain and enhance streetscapes within employment areas. Since this property is a corner property with a Warden Ave address, and has frontage onto two side streets, location of the parking in the defined front yard (Comstock Rd) instead of adjacent to Hymus Rd would have no general urban design or built form impact.
29I note that the visibility of the parking from Warden Avenue, the major arterial, is unaffected by locating the parking in the defined front yard instead of the rear.
30I agree that the proposed parking location meets the general intent and purpose of OP Policy 3.1.3.4 with respect to vehicle parking. I agree that the proposed development respects the character of the surrounding area.
31I find that the proposal maintains the general intent and purpose of the Official Plan.
ZONING BY-LAW
Variances to allow a games arcade
32The Employment Districts Zoning By-law 24982 was enacted in 1996 and therefore predates the amalgamation of the former City of Scarborough, and other municipalities, into the new City of Toronto and the current Official Plan.
33Technology, and along with it, land uses, have changed in the nearly three decades since the By-law was drafted. This is especially true for on-line and remote electronic activities.
34Variance 1 seeks permission to allow a games arcade and a restaurant in the industrial (M) zone and variance 2 requires the same permission for the sliver of land on the subject property that is zoned General Industrial (MG). A restaurant and a gaming arcade are not included in the list of permitted uses.
35Variance 4 requests relief from the provision that specifically prohibits games arcades and games machines in these zones.
[36] The definition of a gaming arcade in the applicable Zoning By-law is as follows: Games Arcade Shall mean an establishment where one or more electronic or manually operated games machines are used for recreation, entertainment or amusement. A bowling alley, billiard hall or pool hall is not considered to be a Games Arcade.
37Counsel acknowledged that the inclusion of even a single electronic games machine qualifies the operation as a games arcade under the By-law definition, but argued that the electronic component of the bingo hall does not function as an arcade where children could play, or in a manner that one might typically think a games arcade would operate.
38Mr. Igelman’s advice was that the variances are needed just to facilitate a modern and more user-friendly way of playing bingo “alongside the traditional “paper” bingo”. In his opinion, the electronic component of the bingo hall is simply an operational matter and does not change the fundamental nature of the bingo hall use.
39In Mr. Igelman’s opinion, the inclusion of an electronic component does not generate any additional planning concerns as compared to a traditional (“old school”) bingo hall.
40I agree that the inclusion of an electronic means of playing bingo represents an internet-era update to bingo that has similarly been experienced in many other activities. Even this TLAB hearing was conducted online.
41As long as no other electronic forms of gaming take place, and the only game played is bingo, I agree that the activity remains the same (the playing of bingo), although translated into today’s context and technology.
42On the basis of this justification, I agree that the variances to permit what has been defined as a games arcade can be granted, but with the condition that only the playing of bingo in electronic form will be permitted. Broader permission for any and all electronic gaming has not been justified and would not be appropriate.
43I find that the variances to permit a games arcade, confined to games machines for the playing of bingo only, maintain the general intent and purpose of the Zoning By-law.
Variances to allow a restaurant
44The current Official Plan specifically permits a restaurant in a General Employment Area designation.
45Mr. Igelman asserted that the restaurant use will complement the bingo hall use.
46The proposed restaurant is intended to support and enhance the bingo hall function, it is not a standalone establishment. On this basis, and in light of the specific Official Plan permission for restaurants in this designation, I am satisfied that the inclusion of a restaurant within the bingo hall maintains the general intent and purpose of the Zoning By-law.
Variance to locate parking in the front yard
47Mr. Igelman advised that the intent of this provision in the Zoning By-law was to limit the number of parking spaces along street fronts.
48Given the amount of parking required and that three sides of the property front onto a street, it is inevitable that the parking will be exposed to at least two of the frontages. This condition would remain whether the parking were located in the defined front yard or the rear.
49I find that the variance to locate parking in the front yard maintains the general intent and purpose of the Zoning By-law.
MINOR AND DESIRABLE
50Mr. Igelman advised that the proposal is similar to activities that currently exist in the study area and is desirable and appropriate.
51Approval of the variances will allow an existing charitable gaming facility to relocate to the currently undeveloped site.
52While I am cognizant of the concerns expressed by City staff in their reports to the COA, I have no evidence before me that identifies any unacceptable adverse impacts from the proposal.
53I find that the proposal is minor and desirable for the use of the land.
CONCLUSION
54I find that the variances, with conditions, individually and cumulatively maintain the general intent and purpose of the Official Plan and the Zoning By-law, are minor and desirable for the use of the land.
DECISION AND ORDER
55The Appeal is allowed and the decision of the Committee of Adjustment (A0206/23SC), dated April 3, 2024, is set aside.
56The variances set out in Appendix A are authorized, subject to the conditions contained therein.
A. Bassios Panel Member
APPENDIX A
APPROVED VARIANCES
Clause VI, Subsection 1(a), Employment District Zoning By-law Number24982 (Golden Mile) Permitted uses in an industrial zone include: -Day Nurseries -Educational and Training Facility Uses -Industrial Uses -Marihuana Production Facility -Offices, excluding Medical and Dental Offices -Places of Worship -Recreational Uses A restaurant is permitted in conjunction with a bingo hall. A games arcade is permitted only for the purposes of bingo electronic gaming in conjunction with a bingo hall.
Clause VI, Subsection 2(a), Employment District Zoning By-law Number24982 (Golden Mile) Permitted uses in an industrial zone include: -Day Nurseries -Educational and Training Facility Uses -Industrial Uses -Marihuana Production Facility -Offices, excluding Medical and Dental Offices -Open Storage -Places of Worship -Recreational Uses A restaurant is permitted in conjunction with a bingo hall. A games arcade is permitted only for the purposes of bingo electronic gaming in conjunction with a bingo hall.
Clause V, Subsection 7.5.2, Employment District Zoning By-law Number24982 (Golden Mile) Parking spaces shall only be permitted in the side yards, rear yards, or enclosed within buildings, except that 5 parking spaces shall be permitted in the front yards or flankage yards for the first 15 m of front wall, plus 2 parking spaces for each 15m of front or flankage wall or part thereof. 15 parking spaces are permitted in the front yard. No more than 346 parking spaces are permitted in the front yard (Comstock Rd).
Clause V, Subsection 24.(a), Employment District Zoning By-law Number24982 (Golden Mile) Games Arcades shall be prohibited except in City Centre Commercial Zone (CCC)and District Commercial Zone (DC) , where specified on Schedule "C". A games arcade is permitted only for the purposes of bingo electronic gaming in conjunction with a bingo hall.
CONDITIONS
- The Applicant is required to submit an acceptable Transportation Demand Management (TDM) Plan to the Transportation Services Division.
- The Applicant is required to provide documentation to the Transportation Services Division that the required TDM measures have been implemented.