Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2025-10-07

24 214901S45 03 TLAB

Wheller (Re), 2025 ONTLAB 360

INTERIM DECISION AND ORDER

Issuance Date:

October 7, 2025

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):

B. WHELLER

Applicant(s):

ACMENG ENGINEERING CONSULT

Property Address:

186 Thirtieth St

COA File No.:

24 151677 WET 03 MV (A0218/24EYK)

TLAB Case File No.:

24 214901 S45 03 TLAB

Hearing Date(s):

January 17, 2025, May 7, 2025, August 11, 2025, September 19, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member: A. BROWN

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Appellant

B. WHELLER

M. MAZIERSKI

Party

CITY OF TORONTO

U. GAUTAM

Participant

T. TEKAVCIC

INTRODUCTION AND CONTEXT

1This an appeal from a decision of the City of Toronto Committee of Adjustment (COA) dated August 29, 2024, in which the Committee denied a request for variances on the subject property.

2The subject property is located at 186 Thirtieth Street in the City of Toronto. The Official Plan designation for the property is “Core Employment Area” as shown on City of Toronto Official Plan Map #15. The property is zoned Employment Industrial E.1.0 under Zoning By-law 569-2013.

3The proposed development is to construct a warehouse on the property. A warehouse is a permitted use (without conditions) under the Zoning By-law. The site is currently occupied by a legal non-conforming residential dwelling that will be demolished.

4The variances under consideration in this Appeal differ in some respects from those in the original COA application. Because the changes to the variances sought in the original application at the COA were not minor, the amended proposal was recirculated in accordance with the Planning Act, pursuant to the Tribunal’s interim decision in Weller (Re) 2025 ONTLAB 298. The hearing of this Appeal then proceeded on May 7, August 11 and September 19, 2025, by way of a virtual hearing on the “Web Ex" Platform.

5The Appellant was represented by his legal counsel, Martin Mazierski. The City of Toronto was represented by its legal counsel, Uttra Gautam.

6According to the Zoning Review Notice, the four variances sought in this Appeal are as follows:

(1) Section 60.20.40.70.(2) By-law 569-2013

The required minimum side yard setback is 3.0 metres.

The proposed north side yard setback is 1.2 metres.

(2) Section 60.20.40.70.(2) By-law 569-2013

The required minimum side yard setback for the stairs is 3.0 metres.

The proposed stairs will have a setback of 0.3 metres.

(3) Section 60.20.90.10.(1) By-law 569-2013

A loading space may not be in a front yard.

The proposed loading space will be located in the front yard.

(4) Section 60.5.100.1(1) By-law 569-2013

A driveway must have a minimum width of 6.0 metres.

The proposed driveway width is 3.65 metres.

7The City of Toronto opposes the variance that would permit a front yard loading space. A front yard loading space (or “front space”) is not permitted under the Zoning By-law. The City takes no position on the proposed side yard setbacks for the building and the exterior stairs on the north side, or the proposed driveway width on the south side of the warehouse.

8Both parties filed Expert Statements. David Igelman (for the Appellant) and Alyssa Hawley (for the City) both testified as qualified experts in land use planning. The evidence before the Tribunal also consisted of the existing survey and the proposed site plan, drawings, elevations, photographs, and maps. Information about previous variance decisions was also provided, along with historical information about previous By-laws in Etobicoke.

9Thomas Tekavcic filed an election as a Participant, along with his Participant Witness Statement. He was present for the entire hearing. His grandmother resides next door to the subject property and, as he has a family interest in this matter, and there were no objections, there was no need for him to file an Authorization to Represent form.

10I advised those present that, in accordance with direction to the TLAB by City Council, I had visited the site and surrounding neighbourhood and reviewed the pre-filed materials in preparation for the Hearing, but that it was the evidence to be heard that was of importance.

THE LEGISLATIVE AND POLICY FRAMEWORK

11Provincial 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.

12Provincial Policy – S. 3

A decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2024 Provincial Policy Statement (PPS).

13Variance – 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.

14Planning Act. S.45(18)

s.45(18) The Tribunal may dismiss the appeal and may make any decision that the committee could have made on the original application.

(18.1) On an appeal, the Tribunal may make a decision on an application which has been amended from the original application if, before issuing its order, written notice is given to the persons and public bodies who received notice of the original application under subsection (5) and to other persons and agencies prescribed under that subsection.

(18.1.1) The Tribunal is not required to give notice under subsection (18.1) if, in its opinion, the amendment to the original application is minor.

(18.2) Any person or public body who receives notice under subsection (18.1) may, not later than thirty days after the day that written notice was given, notify the Tribunal of an intention to appear at the hearing or the resumption of the hearing, as the case may be.

(18.3) If, after the expiry of the time period in subsection (18.2), no notice of intent has been received, the Tribunal may issue its order.

(18.4) If a notice of intent is received, the Tribunal may hold a hearing or resume the hearing on the amended application or it may issue its order without holding a hearing or resuming the hearing.

15The Exhibits filed in this matter are:

Exhibit 1 – Applicant’s book of documents December 19, 2024

Exhibit 2 – Document Book Addendum January 2025

Exhibit 3 – Applicant’s Updated Expert Statement – January 16, 2025

Exhibit 4 – Affidavit of Service of Notice of Hearing – May 2, 2025

Exhibit 5 – City Original Response – December 16, 2024

Exhibit 6 – City Full Statement- February 25, 2025

Exhibit 7 – City Document Book – February 25, 2025

Exhibit 8 – Participant Statement December 9, 2024

Exhibit 9 – Revised Zoning Review - January 7, 2025

Summary of the Evidence

16A summary of the evidence is provided 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 in arriving at the Decision.

The Appellant’s Evidence

17David Igelman testified on behalf of the Appellant. He stated his professional qualifications and experience as an expert in land use planning. I qualified him to provide his expert opinion evidence. Mr. Igelman’s expert statement was filed with the Tribunal and an amended statement was subsequently filed after the City Zoning Examiner issued a revised Zoning Review that added the requirement to obtain a variance to permit a front yard loading space. The Zoning Examiner confirmed that no Site Plan Approval is required.

18The Appellant proposes to build a two-storey warehouse on the lot at 186 Thirtieth Street.

19Thirtieth Street exists within a “Core Employment Area”, and the surrounding uses are mostly larger-scale industrial and commercial uses. Thirtieth Street contains a mix of smaller-scale buildings on smaller lots as compared to the lots on the surrounding streets. The land uses along Thirtieth Street to the north and south of the subject property consist of a mix of industrial, commercial and legal non-conforming residential uses. One of the lots with a non-conforming residential dwelling is located immediately to the north of the subject property (the Tekavcic property).

20The subject property is located on the west side of Thirtieth Street, between Horner Avenue and Alhena Avenue. It is located east of Brown’s Line, north of the Canadian National Railway, west of Kipling Avenue and south of Horner Avenue. This is referred to as the “Core Employment Area” and the “study area”.

21The lots on Thirtieth Street are generally smaller, with narrower frontages than the other lots in the Core Employment Area. They are almost exclusively used for industrial purposes. The only legal non-conforming residential uses within the study area are found on Thirtieth Street. Thirtieth Street is defined as a Collector road. It has one lane for traffic in each direction. Horner Avenue is a Minor Arterial road.

22The proposed warehouse has a height of 10.06m., with an approximate GFA of 399 sq.m. (less than the permitted GFA of 624.84 sq.m.) The proposal shows that there will be a driveway along the south side of the warehouse. Only the portion of driveway that is between the south wall of the warehouse and the south lot line requires a variance. The portions of the driveway at the front and rear of the property meet the Zoning By-law requirement of 6m. The front half (12.65m. in length) of the interior of the proposed warehouse has a mezzanine. The rear portion of the warehouse (13.11 m. in length ) does not have a mezzanine.

23The proposal includes an overhead door at both the rear and front of the warehouse (16 ft high and 14 ft. wide), along with pedestrian entrances at both ends. Exterior stairs (primarily intended for emergencies) exit from the second floor mezzanine, which is also served by an interior elevator.

24The subject lot is 15.24m. wide and 41m. deep. The lot was created prior to the current zoning requirement of 20m. lot width.

25No parking spaces are proposed for the subject property.

26The planned front wall of the warehouse is 7.5m from the City-owned sidewalk. The dimensions of the proposed front loading space meet the requirements for a Type “C” loading space defined by By-law 569-2013, and it would therefore not be able to accommodate large trucks.

27Mr. Igelman stated that, in his opinion, the proposed variances are consistent with the policies of the Provincial Planning Statement (2024). The proposed use of the land is consistent with the designation of the land for employment uses, and optimizes existing infrastructure and public service facilities. The warehouse supports and adds to the economic activity in the area. It also represents an intensification of employment uses, in accordance with the PPS, including “Paragraph 2.8.2 Employment Areas”.

28Mr. Igelman stated that, in his opinion, the proposed variances meet the four requirements found in section 45(1) of the Planning Act.

General Purpose and Intent of the Official Plan

30Mr. Igelman explained that, although a “study area” need not be defined, he found it helpful to delineate the area that he used in his analysis. The area covers an area of similarly zoned lands for employment industrial uses. All properties within the area are zoned as Employment Industrial E.1.0 except for two site-specific exception zones for two properties. The prevailing buildings are typically 1-3 storeys in height. Most buildings are generally large-scale industrial buildings. As mentioned, Thirtieth Street mostly consists of smaller-scale industrial buildings and some legal non-conforming single detached residential dwellings.

31Lot size and configuration varies within the study area. According to Mr. Igelman, based on his analysis of maps and photographs, and his own visit to the site, some lots are “much smaller” in both frontage and area compared to most other lots within the study area. These smaller lots exist mostly on Thirtieth Street.

32Mr. Igelman referred to Chapter 1 and Policy 2.2.1 of the Official Plan, which both mention the need to create employment opportunities for Torontonians. Mr. Igelman’s opinion is that the proposed development maintains the intent of the City’s Official Plan in that the warehouse is a permitted use within the Core Employment Area designation; it helps to protect and preserve the employment area (OP Policy 2.2.4.); it will provide employment opportunities (Policy 2.2.4.2(c) and 2.2.4.2(l)); and it contributes to the City’s economic base (Policy 2.2.4.2(j)). Furthermore, it is a more intensive use of the land.

33The property is a comparatively narrow lot, with a frontage of 15.24m. and the variances are necessitated mostly by the undersized lot. In Mr. Igelman’s opinion, permitting a front yard loading space is more functional and practical than using the rear loading space, where he asserts manoeuvring would be more difficult for loading. It is not merely a matter of convenience for the owner. The rear space is similar in area to the front space and it is “feasible”. However, the front yard loading space is preferable because it is closer to the street and there is more room to manoeuvre. A vehicle would fit entirely within the space. The Appellant did not produce an expert analysis in respect of the viability of turning or manoeuvring in the rear loading space.

34Further to OP Policy 3.1.3, Mr. Igelman stated that the warehouse is an infill and redevelopment site that fits in with and improves the surrounding area. Mr. Igelman’s research found that along Thirtieth Street there is a “relatively consistent” pattern of industrial buildings and residential buildings with reduced side yard setbacks less than 3m. This includes the current dwelling on the subject property, and its neighbours to the north and south, along with many other developments shown in the Appellant’s Disclosure.

35Mr. Igelman stated that the study area has changed over time. He referred the Tribunal to a list of variance applications in the study area over the last 10-15 years, in which approvals were obtained for reduced side yard setbacks and reduced driveway widths. Of 12 approvals in the area, 9 were on Thirtieth Street. Some variances were for residential dwellings. Photographs produced by the Appellant show industrial uses on Thirtieth Street that have a range of side yard setbacks, many under the existing zoning requirement of 3m. Existing residential dwellings and buildings could be converted to an industrial use and would maintain their existing setbacks.

36Mr. Igelman referred the Tribunal to a Committee of Adjustment decision that permitted a front yard loading space at a warehouse at 34 Belvia Road. Belvia Road is a local road in the study area.

37Some buildings on Thirtieth Street have overhead doors in their front facing walls and some of these properties appear to have front yard spaces that might be used for loading. Photographs of these properties were produced. In Mr. Igelman’s opinion, this feature indicates that the proposed warehouse, with its overhead door and front loading space, would fit within the existing context.

38Mr. Igelman referred the Tribunal to Official Plan Policy 3.1.3.4:

Development will locate and organize vehicle parking, vehicular access and ramps, loading, servicing, storage areas, and utilities to minimize their impact and improve the safety and attractiveness of the public realm, the site and surrounding by:

e) limiting new, and removing existing, surface parking and vehicular access between the front face of a building and the public street or sidewalk;

39Referring to clause (e) above, Mr. Igelman emphasized that, in his opinion, “limiting” vehicular access between the front of a building and the public sidewalk does not mean that such access is “prohibited”. In his opinion, this must be weighed against considerations of the overall intent of the Official Plan, the benefit of the development and the constraints of a narrower and shallower lot.

40Mr. Igelman testified that the front yard loading space will not impact the public sidewalk or the City right-of-way. In addition, the proposal is compliant with the width requirement for the driveway curb cut. The proposal eliminates all surface parking on the site. He further testified that the proposal is consistent with OP Policy 3.5.1.1 and 3.5.1.2. by providing stable employment opportunities and by replacing a prohibited sensitive land use with a permitted industrial land use. OP Policy 4.6.1 specifically lists warehousing as a permitted use in Core Employment Areas.

41Official Plan Policy 4.6.8 prescribes policies for development within Employment Areas. In Mr. Igelman’s opinion, the proposal is consistent with those policies. It complements, supports and protects the existing surrounding area. In his view, it will not have any adverse impact on the existing public realm in this built-up area, “further than what is already contemplated by the ZBL”. Soft landscaping on the perimeter is proposed in the plans. No concerns were raised by the City’s Transportation Staff regarding the proposal. In his opinion, the proposal will not generate any additional traffic, noise, vibration or odour compared to a warehouse that would be permitted as-of-right. The proposed warehouse use would have similar or fewer potential adverse impacts compared to some of the other permitted uses.

42Mr. Igelman stated that Policy 4.6.8. refers to the need to mitigate potential adverse impacts on “major facilities and/or other businesses” and not to potential impacts on non-conforming residential uses. In addition, buffering is required for “sensitive uses” where they are permitted or proposed adjacent to or near Employment Areas. This does not include non-conforming residential uses within the Employment Area.

43Mr. Igelman referred the Tribunal to variance approvals affecting 199, 157, 141, and 157 Thirtieth Street as demonstrating that the area is experiencing a modest regeneration and transition.

General Intent and Purpose of the Zoning By-law

45In Mr. Igelman’s opinion, the proposed variances meet the general purpose and intent of the Zoning By-law.

46Variances #1 and #2 are in respect of the side yard setback from the north lot line. If approved, they would permit the wall of the warehouse to be 1.21m. from the north lot line and the exterior stairs to be 0.3m. from the north lot line (within the 1.21m. space). The zoning requirement is 3.0m. (The Zoning Review states “1.20m.” The Appellant requests 1.21m as depicted on its site plan. The Tribunal will rely on 1.21m.) Mr. Igelman explained that the purpose of a side yard setback is primarily to ensure adequate access from the front to the rear, and to allow space for stormwater infiltration and runoff. In addition, adequate separation mitigates potential adverse impact to adjacent properties. In the E.1.0 Zone, it also facilitates vehicular circulation around the lot.

47Mr. Igelman stated that providing for vehicular circulation around a narrow lot is difficult. The industrial uses along Thirtieth Street typically have a narrow setback along one length and a driveway down the opposite side of the lot. The industrial uses on Thirtieth Street are smaller-scale and therefore do not require the vehicular circulation that would be required for a larger scale use.

48Mr. Igelman’s research found a range of side yard setback measurements along Thirtieth Street, as mentioned above. Industrial buildings have been approved for side yard setbacks similar to, or smaller than, the Appellant’s proposal. In some cases, these properties are adjacent to a non-conforming residential use. There are no windows along either side of the proposed warehouse, and there is a door to the exterior stairs on the north side.

49The lot frontages along Thirtieth Street are narrower than those generally found in the study area, and do not meet the current zoning requirement of 20m. The requirement of 3m. for side yard setbacks applies to these narrower lots. However, the side yard setbacks need to be varied for smaller lots in order to facilitate industrial uses.

50The Appellant proposes a driveway width of 3.65m., whereas the zoning by-law requirement is 6m. The front portion of the driveway at the front of the lot exceeds the By-law requirement and connects to the proposed front yard loading space in front of the overhead doors. The rear portion of the driveway, beyond the south wall, also exceeds the By-law width requirement. Mr. Igelman observed that 3.65m. meets the zoning standard for a one-way driveway, as per Section 220.5.20.1 of the Zoning By-law. Six metres is required for a two-way driveway. Mr. Igelman stated that several properties along Thirtieth Street have driveways that are similar to the Proposal. Some of these result from Committee of Adjustment approvals.

51The Appellant proposes a front yard loading space, whereas a front yard loading space is not permitted by the Zoning Bylaw. Mr. Igelman stated that the intent of the Zoning By-law is to ensure a safe and attractive public realm in Core Employment Areas and to ensure that pedestrian and vehicular circulation is not impeded. The proposal is for a Type-C loading space which has a minimum 3.5m width and 6.0m. length.

52Mr. Igelman stated that the Zoning Bylaw permits parking in the front yard within Employment Area Zones. In his view, the front loading space will have “little to no impact” beyond what the By-law already allows if there were parking at the front, instead. The permitted parking (5 spaces) under the By-law would take up more space than the proposed loading space.

53Mr. Igelman’s research revealed the existence of areas in front of the main wall of some properties along Thirtieth Street that could be used as front loading spaces. This includes properties with overhead doors facing Thirtieth Street, Carson Street, Horner Street and Belvia Road. Photographs of these properties were provided in the Appellant’s Disclosure Document, indicating 10 examples out of 139 parcels in the study area. A variance was approved at 34 Belvia Road to permit a front yard loading space.

54The front overhead doors appeared to be used for a variety of commercial activities. The space in front of these doors may be used for loading but Mr. Igelman stated that he did not know for certain how they were used. He observed vehicles moving in and out of the space in front of the door. The facilities were built before the current by-law.

Desirable for the Appropriate Development or Use of the Land

56Mr. Igelman stated that the proposal will remove a prohibited use of the land and replace it with a permitted use that is supported by the Official Plan and Zoning By-law 569-2013. The updated Zoning Examiner’s Notice eliminated the Site Plan Approval requirement for the Proposal. The Subject Property is close to public transit and major highways, making it appropriate for a warehouse. The warehouse will provide employment opportunities and gradual intensification, and supports the City’s policies for Employment Areas through the Official Plan. In his view, the proposal fits in with the development pattern of the area. The reduced side yard setback and reduced driveway width will allow for an industrial use having a building of a reasonable size, similar to other narrow properties in the area that have similar uses or industrial buildings.

57In Mr. Igelman’s opinion, the requested variances are appropriate for the development of the subject property.

Are the Variances Minor?

59In Mr. Igelman’s opinion, the requested variances are minor. The “test” is not that there is no impact, but rather that there should be no unacceptable adverse impact of a planning nature. Only the north side yard setback requires a setback variance. The non-conforming residential property at 192 Thirtieth Street does not have windows facing the proposed warehouse, and currently has a carport next to the subject property’s north lot line. Vehicular traffic will occur at the south side of the warehouse, away from the neighbour to the north.

60The Proposal includes soft landscaping along the north lot line. In Mr. Igelman’s opinion the reduced side yard setback will not affect circulation from front to back, or storm water infiltration. The front yard loading space will have little to no impact beyond what would occur if the space were used for parking as permitted by the Zoning By-law. The driveway is for the private use of the business operator and employees. Its use will not have an adverse impact on neighbouring properties. The Proposal is designed to be compatible with existing properties in the area, and is compliant with all other zoning requirements.

61Mr. Igelman’s expert opinion is that the Proposal meets the four tests under the Planning Act and is consistent with the Provincial Policy Statement (2024).

Evidence of the City of Toronto

62The City of Toronto is a Party in this Appeal and was represented by legal counsel Uttra Gautam. The City filed a Response to the Appeal, along with its own disclosure and an Expert Statement from Alyssa Hawley. The City takes no position on the variances for the side yard setbacks for the building and stairs or the reduced driveway width. However, it opposes the proposed front yard loading space. Accordingly, its evidence focussed on that particular variance.

63Alyssa Hawley testified that she is an Assistant Planner for the City of Toronto and a graduate of Toronto Metropolitan University with a Bachelor of Urban Regional Planning. She is a candidate member of the Ontario Professional Planners Institute and the Canadian Institute of Planners. I qualified her to testify as an expert at the hearing.

64Ms. Hawley stated that she visited the subject property and its surrounding area. It is her professional opinion that the proposed variance to permit a front yard loading space does not satisfy the four tests under s. 45 of the Planning Act. Specifically, it fails to meet the purpose and intent of the Official Plan and the Zoning By-law.

65Ms. Hawley stated that defining the boundaries of an appropriate study area is helpful for determining the relative physical character of the area in relation to the Official Plan and the Zoning By-law, and examining relevant variance decisions. Her chosen study area accords with that of the Appellant. The area has approximately 160 lots, consisting primarily of industrial and commercial uses, with the exception of Thirtieth Street which has 34 residential buildings. (Two sites in the area have site-specific zoning exceptions.)

66Ms. Hawley testified that Thirtieth Street is bounded by Neighbourhoods to the north and south. She observed pedestrians and vehicles using the street as a connection between the neighbourhood to the north and the area to south having neighbourhoods and mixed-use areas, such as shopping and a college campus. The existing residential buildings on Thirtieth Street were constructed between 1919 and 1973. Some buildings have experienced small-scale additions.

67According to Ms. Hawley’s analysis of 32 Minor Variance applications within her study area, only one application (34 Belvia Road) was approved for a front yard loading space. No other COA application requested this variance. Belvia Road is a local road, not a connector road, and it does not have residential dwellings or a TTC route. It is therefore different from Thirtieth Street.

Provincial Planning Policy

69Ms. Hawley cited Chapter 2.8 of PPS (2024), dealing with Employment Areas. It is her opinion that the Application does not conflict with Chapter 2.8.

70Ms. Hawley’s expert opinion is that the proposed variance for the front yard loading space does not satisfy the four tests prescribed in section 45 of the Planning Act.

General Intent and Purpose of the Official Plan

72Section 2.2.4 of the Official Plan deals with Employment Areas and states, at clause 2.2.4.3, that:

A more intensive use of lands in Employment Areas for business and economic activities will be encouraged to make better use of a limited supply of lands available for these activities.

73Ms. Hawley agreed with the Appellant that new development with Employment Areas should take place in a more intensive physical form. She did not agree that loading in the front yard is required to facilitate the operation of the proposed development or is an exercise in good planning.

74Ms. Hawley referred to the sidebar at O.P. Section 2.2.4 dealing with Sensitive Uses:

Sensitive Land Uses

For clarity and for the purpose of this Plan, the term sensitive land uses means: buildings, amenity areas, or outdoor spaces where routine or normal activities occurring at reasonably expected times have the potential to experience an adverse effect, due to nearby major facilities or due to emissions that may be generated by the land uses permitted by this Plan within an Employment Area. Sensitive land uses may be a part of the natural or built environment, principal uses or accessory/ ancillary uses. Residential uses shall be considered sensitive land uses. Other examples may include, but are not limited to: daycare centres, and educational and health facilities. If the Plan permits a use in an Employment Area, the use is not a sensitive land use within that Employment Area for the purposes of this Plan, but may be a sensitive land use as defined in the Provincial Policy Statement and, if so, such land use may require noise, vibration, air quality, and/or odour studies as part of complete application.

Ms. Hawley opined that this Sidebar means that residential uses should be considered sensitive uses.

75Ms. Hawley also referred to section 2.2.4.5 of the Official Plan, which states:

5. Sensitive land uses, including residential uses, where permitted or

proposed outside of and adjacent to or near to Employment Areas or

within the influence area of major facilities, should be planned to

ensure they are appropriately designed, buffered and/or separated

as appropriate from Employment Areas and/or major facilities as

necessary to:

a) prevent or mitigate adverse effects from noise, vibration, and

emissions, including dust and odour;

b) minimize risk to public health and safety;

c) prevent or mitigate negative impacts and minimize the risk of

complaints;

d) ensure compliance with environmental approvals, registrations,

legislation, regulations and guidelines at the time of the

approval being sought for the sensitive land uses, including

residential uses; and,

e) permit Employment Areas to be developed for their intended

purpose.

76Ms. Hawley stated that the proposed warehouse will directly abut a lawfully existing sensitive use, i.e. a residential dwelling, and is close to other residential dwellings. Residential uses are not listed within Official Plan Policy 4.6.1. In her view, proper measures such as providing adequate buffering and setbacks should be taken to mitigate any impact onto the abutting residential property. She noted that the Appellant has improved its original variance request by increasing the proposed side yard setback and adding proposed landscaping. However, in Ms. Hawley’s opinion, a loading space in the front yard would not provide sufficient space to buffer loading activities from the surrounding sensitive uses and would increase impacts on those uses.

77Ms. Hawley found 51 lots on Thirtieth Street within the study area. She identified eight properties that have overhead doors on their main wall fronting the street, two of which are on corner lots and have their overhead doors facing Alhena Avenue. (One address is on Horner Avenue, but its door faces Thirtieth Street. Similarly, the property identified on Carson Street has its door facing Thirtieth Street.) These buildings were constructed between 1926 and 1966, pre-dating the current Official Plan. In Ms. Hawley’s opinion, these buildings (with overhead doors) do not represent the “prevailing conditions” on the street (though not referring to O.P. Chapter 4.1 – Neighbourhoods). Nor does this feature form part of the planned context for Thirtieth Street.

78Ms. Hawley stated that her visit to the study area showed that Thirtieth Street is used as a TTC route and by more pedestrians and vehicles than other streets in the study area. She referred to Official Plan Section 3.1.3.4, which requires that vehicle parking, access and ramps, loading, servicing, storage areas and utilities should be located and organized to minimize their impact and improve the safety and attractiveness of the public realm, the site, and the surrounding area. In her opinion, the proposed front loading space fails in this regard.

79Moreover, Chapter 4.6 of the Official Plan, on Employment Areas, refers to the need to ensure a “high-quality public realm”. Chapter 4.6.8(c) states that:

Development will contribute to the creation of competitive, attractive, highly functional Employment Areas by:

(c) providing a high quality public realm with a connected, easily understood, comfortable and safe network of streets, parks and accessible open spaces;

80In Ms. Hawley’s opinion, Thirtieth Street’s role as a connector road is important to maintaining a high-quality public realm. A front yard loading space would, in her view, disrupt and distract from a high-quality public realm. It could result in additional truck and vehicular movement in close proximity to the sidewalk and could create unsafe conditions for pedestrians and for those who work in the vicinity. She agreed with the Appellant that the number of trucks going into the rear loading space could be the same as the number of trucks going into the front loading space. The issue for the City is proximity to the public realm. In addition, as mentioned, the street is served by a TTC bus route during peak hours Monday to Friday.

81No loading or parking deficiencies were identified in the Zoning Review dated January 7, 2025.

82While the Official Plan does not prohibit a front yard loading space, it does refer to limiting or removing front loading spaces. The subject property has an alternative, namely, the rear loading space. The existence of a front yard loading space is triggered by its dimensions and use.

83Ms. Hawley’s expert opinion is that the Proposal does not meet the intent and purpose of the Official Plan.

General Intent and Purpose of the Zoning By-Law

85Ms. Hawley stated that the intent and purpose of the Zoning By-law is to regulate the use of the land to ensure that development fits on a given site and within the surrounding context, and reduces negative impacts on adjacent properties. Moreover, the intent of limiting the location of a loading space is to mitigate potential impacts of loading activities of an industrial use upon a property so as not to “disrupt the public realm.”

86Ms. Hawley reiterated her analysis of the existence of overhead doors among 51 lots along Thirtieth Street, within the study area. None of the eight properties had a variance approval for a front loading space. She was unable to provide insight as to how these overhead doors are actually being used, that is, whether they are for a garage, storage area or some other use. Some properties are used for commercial properties, and others appear to have both non-conforming residential and commercial uses. Previous by-laws were different from the current by-law. She stated that some of the properties appeared to have garages. A loading space is defined in the Zoning By-law (Chapter 800.50 (415). A garage is not defined in the By-law. The Cambridge Dictionary defines a “garage” as a building where a car is kept built next to or part of a house, or is a place where cars are repaired. In her opinion, a loading space is likely to have more activity than a garage.

87Sixty (60) percent of the lots on Thirtieth Street in the study area are currently residential lots. These are part of the existing context, but not the planned context. Ms. Hawley testified that the Planning Act (not the Official Plan or Zoning By-law) protects legal non-conforming uses, which must be continuous.

88Ms. Hawley stated that, if the proposed front yard loading space is approved, it would set a precedent for other such applications for variances along the street, causing an incremental deterioration along the street.

89Ms. Hawley agreed with the Appellant that the lots on Thirtieth Street are narrower and shallower than those generally found in the study area. In her research, she did not observe rear loading spaces along Thirtieth Street. She agreed that properties at 134-152 Thirtieth Street, 171 Thirtieth Street, and 198 Thirtieth Street do not have rear loading spaces. They were built before the current Zoning By-law.

90Ms. Hawley stated that the current Zoning By-law determines whether a building requires a loading space. Although vehicular traffic crossing the sidewalk would be inevitable, the intent of the By-law is to limit the conflict between vehicles and those using the sidewalk. She confirmed that she is not qualified as a traffic engineer but she believes that the rear loading space would have sufficient space to manoeuver a truck. A rear loading space is required by the Zoning By-law.

91Ms. Hawley’s expert opinion is that the requested variance to permit a front yard loading space does not meet the intent and purpose of the Zoning By-law.

Desirable for Appropriate Development or Use of the Land

93Ms. Hawley stated that the front yard loading space is not desirable for the appropriate development of the land. The proposal departs from the intent of the Official Plan and Zoning By-law. It could create unsafe conditions for Transit users along Thirtieth Street within the study area, and an undesirable public realm, especially if applications are approved in the future to permit similar variances. She agreed with Mr. Mazierski that “need” is not one of the four tests that must be met under the Planning Act.

Is the Variance Minor?

95Ms. Hawley stated that the determination of whether a variance is “minor” can be determined by “measuring the overall magnitude of the request within a given area”. Only one such variance has ever been granted in the study area, on Belvia Road. Few properties on Thirtieth Street have an overhead door facing Thirtieth Street, showing that there is no prevailing context from a planning perspective. She stated that she was using the term “prevailing” to mean how “common” the feature is.

96Further, in Ms. Hawley’s opinion, the proposed variance will inform future applications, resulting in an incremental deterioration both along Thirtieth Street and in the surrounding area. The creation of front yard loading spaces will result in unsafe conditions for pedestrians and vehicular traffic. This poses a significant risk to the public realm from trucks manoeuvring out of the loading space. Thirtieth Street has one lane in each direction. She observed high volumes of traffic on the street. In her view, the variance is not minor in nature.

Statement of Thomas Tekavcic, Participant

98Mr. Tekavcic’s witness statement was entered as Exhibit 8. He submitted that the variances are not minor. The warehouse would create a wall that would block off the light from much of the side and rear yard of his grandmother’s residence at 192 Thirtieth Street. It is too close, given that the bylaw requires a 3m. side yard setback and the stairs would only be 0.3m from his grandmother’s property. In his view, the proposed building is simply too high and too long for the subject property. He is concerned that the proposed trees along the north property line will not grow to 33 feet to obscure the warehouse. He is concerned about the noise and pollution from trucks and he believes that the trucks will spill over onto the sidewalk. He is fearful that the site will be used for repairing trucks. He stated that the immediate area close to the subject property is comprised of residential properties that are occupied by families. He acknowledged that the carport limits the view from the residence to the proposed warehouse and there is no second floor window on the south side. He also acknowledged that the By-law does not have a height restriction for the warehouse.

99Mr. Mazierski replied that the Owner was aware that the warehouse could not be used for vehicle repair, would work with the City to find appropriate trees for the landscaping, and did not intend to exceed the proposed 30.06m. height. (The owner and the City had discussed how to alter the plans to incorporate landscaping and to increase the side yard setback from the original proposal.)

Submissions

100The Parties gave a brief summary of their respective positions.

101The Appellant asserts that the Official Plan must read as a whole. The property is in a Core Employment Area and, accordingly, the concept of “prevailing character” is not applicable. Moreover, the number of front overhead doors along Thirtieth Street is irrelevant, as they do not have to be “most frequent”. Official Plan 3.1.3.4 refers to the existing and planned context. The Official Plan clearly excludes residential uses from Core and General Employment Areas. Only the Planning Act s.34(9) protects non-conforming residential use. Here, there is no adjacent residential land use area, therefore there is no need to buffer. The Appellant submitted that the reference to sensitive land use in OP 2.4.5(b) is irrelevant. OP 4.6.4.(k) requires buffering from Neighbourhoods, not from legal non-conforming residential dwellings with an Employment Area.

102Mr. Mazierski emphasized that OP 3.1.3.3 only speaks to “limiting” new vehicular access in front of buildings and sidewalks. It does not prohibit access. This must be balanced against other Official Plan Policies which encourage the intensive use of the land and which were the subject of Mr. Igelman’s testimony. The subject property is comparatively narrow and shallow and this constrains the use of the rear loading space where it is more difficult to manoeuvre. The Appellant’s evidence identified properties on Thirtieth Street that do not have rear loading spaces. Moreover, some properties on Thirtieth Street have front loading spaces. This is part of the existing context. It is relevant to the planned context because small lots will continue to need front loading spaces.

103A front yard loading space would not precipitate any more truck traffic than a rear loading space. There will be trucks crossing the public realm, either way. It is less difficult for a truck to get out of a front yard space. Several properties on the street have garages where it appears that vehicles back into the driveway. Parking is permitted in front of the proposed warehouse, and those vehicles would back in.

104It is submitted that there is no adverse impact arising from the front yard loading space. Side yards are narrow on many of the properties on the street. There are no windows facing the northerly neighbour. Landscaping will be planted along the north lot line and at the front. The height of the warehouse will not exceed 10.06 meters.

105Ms. Gautam, for the City, submitted that the Appeal should be refused. The front yard loading space does not represent good planning and would set a negative precedent. She observed that few of the properties on Thirtieth Street have space in front of overhead doors, and there is no evidence about how the front overhead doors are actually used.

106Ms. Gautam observed that the Appellant did not provide expert evidence from a transportation expert. Thirtieth Street is unique within the study area. It is the only connector road and it has legal non-conforming residential dwellings. In her submission, the rear overhead door and rear loading space could function as well as the front. There was no expert evidence about how well the rear space would function.

107The intent of the Official Plan and Zoning By-law is to minimize the impact of front spaces loading on the public realm. 34 Belvia Road is on a local road where there is no TTC transportation and there are no residences. It is the only instance of a variance being granted for a front yard loading space.

108The Official Plan creates concerns about the impact of the proposal on the public realm and public safety. The Zoning By-law prohibits a front yard loading space. The proposal is not desirable for the appropriate development of the land. The convenience of the owner is not part of the test for approving a variance.

109Mr. Mazierski replied that the precedent would not be negative. He added that the test for “desirability” is for future owners, not just the current owner.

ISSUES and ANALYSIS

110The Appellant has the onus of proving that the proposed variances meet all four statutory tests in section 45(1) of the Planning Act. That is, do the variances maintain the general intent and purpose of the Official Plan and the Zoning By-law? Are they desirable for the appropriate development or use of the land? Are they minor in nature? The proposal must also be consistent with section 2 of the Planning Act and the Provincial Policy Statement (2024).

111A hearing before the TLAB is a hearing ‘de novo’ under s.45(18) of the Planning Act (Act), meaning the entire application that was before the Committee of Adjustment must be considered anew.

112A variance is a privilege and not a right, and a variance will not be approved if it fails to meet all four tests.

The PPS (2024) and the [Planning Act, s.2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) and [s.3](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

113The Tribunal must have regard to the matters of provincial interest enumerated in section 2 of the Planning Act, and its decision must be consistent with the 2024 Provincial Planning Statement (PPS). I accept the evidence of Mr. Igelman (which the City does not dispute) that the Proposal is consistent with the Provincial Policy Statement (2024). The proposed use of the land is consistent with the designation of the land for employment uses, and optimizes existing infrastructure and public service facilities. The warehouse supports and adds to the economic activity in the area. It also represents an intensification of employment uses, in accordance with the PPS, in particular “Paragraph 2.8.2 Employment Areas”.

114Moreover, I find that the proposal is consistent with the Provincial Interest specified in s.2(k) of the Planning Act, namely, the adequate provision of employment opportunities.

General Intent and Purpose of the Official Plan

116The evidence is that Thirtieth Street is unique within the Core Employment Area (the “study area”). Unlike the other streets in the area, it has properties containing legal non-conforming residential dwellings. The area as a whole consists primarily of local roads having comparatively larger lots and having industrial buildings, Thirtieth Street has sidewalks down both sides, a TTC bus route at peak hours, and it serves as a connector road between a neighbourhood to the north and an area to the south that contains industrial and commercial uses along with a College Campus and various other uses. No traffic study or analysis for Thirtieth Street was provided by either Party through a qualified expert.

Side Yard Setbacks and Driveway Width

118Mr. Igelman provided detailed evidence of the existing side yard setbacks on properties along Thirtieth Street. Many properties have side yard setbacks less than the zoning requirement of 3m. This was clearly evident in the photographs and maps found in the Appellant’s Disclosure. Recent variance decisions found in a chart provided by Mr. Igelman have also approved side yard setbacks of less than 3m.

119The Appellant seeks a setback of 1.21m. for the north wall and (within the 1.21m side yard) a setback of 0.30m. for the exterior stairs from the second floor mezzanine. The exterior stairs would be used in emergencies, as occupants would normally use the interior elevator to access the second floor.

120The driveway along the south side of the warehouse would be 3.65m. for the length of the building, whereas the Zoning By-law requires a minimum of 6m. Mr. Igelman’s evidence is that 3.65m is adequate for a one-way driveway to the rear of the property. Driveways are found on properties along the street and many are less than 6m. wide.

121The City of Toronto did not take a position on the proposed variances for the side yard setback and the driveway.

122I agree with the expert evidence of Mr. Igelman that the proposed variances to the side yard setback and the driveway width are consistent with the general intent and purpose of the Official Plan.

Front Yard Loading Space

124The Appellant proposes to include a front yard loading space in front of the overhead door in the main front wall of the warehouse. The dimensions would meet the requirements for a Type “C” loading space, the smallest such space identified in the Zoning By-law. The loading space would abut the public sidewalk and City right-of-way. Landscaping would be supplied adjacent to the space as shown on the site plan.

125In Mr. Igelman’s opinion, the front yard loading space would be more functional than the rear loading space. It would be easier to manoeuvre in and out of the space, compared to having to use the full driveway and manoeuvre to the rear overhead door. In his view, the front loading space is not merely a convenience. The trucks would not be using the City sidewalk or right-of-way.

126The Appellant submits that the volume of vehicular traffic would be the same whether the loading takes place at the front or the rear. Vehicles would use the approved driveway cut. The Official Plan does not prohibit vehicular traffic at the front of the building. Mr. Igelman stated that the space could be used for parking in accordance with the By-law. Furthermore, photographs of numerous properties along Thirtieth Street show that vehicles are parked at the front of properties, in front of garages and other buildings, and on driveways.

127Both Parties provided evidence in respect of the existence of overhead doors along Thirtieth Street. There are only eight such doors on the street. It is not clear from the evidence of either party how these overhead doors are used or if the space in the front is a loading space.

128In my view, the overhead doors (some with possible front loading areas) are part of the existing context along the street, but the frequency of them does not support the notion that the planned context embraces, or even supports their existence on the street or in the study area.

129There are no variance decisions allowing a front yard loading space on Thirtieth Street. The property at 34 Belvia Road obtained a variance to permit a front yard loading space. Belvia Road is a local road, having larger lots, fewer pedestrians and no TTC route. It is distinguishable from the subject property.

130The Official Plan creates Employment Areas to encourage and intensify industrial and commercial activity with the City limits. The benefits of such activity, including the creation of employment opportunities, are explained in detail in the Official Plan. The Official Plan also recognizes that industrial activity does not always easily co-exist with other uses of the land.

131The Appellant correctly points out that the vehicular traffic entering and leaving the property is likely to be the same, whether or not the loading takes place at the front or the rear. This vehicular traffic is not prohibited by the Official Plan. Secondly, parking is permitted under the Zoning By-law, and it would create traffic across the sidewalk. The properties along Thirtieth Street have driveways and there will obviously be vehicles coming and going from these commercial and residential properties. I conclude that “traffic” volume to and from a front yard loading area is not the primary consideration in the matter before the Tribunal in determining the intent of the Official Plan.

132Official Plan Policy 3.1.3.4 (Built Form) states:

Development will locate and organize vehicle parking, vehicular access and ramps, loading, servicing, storage areas, and utilities to minimize their impact and improve the safety and attractiveness of the public realm, the site and surrounding by:

e) limiting new, and removing existing, surface parking and vehicular access between the front face of a building and the public street or sidewalk;

The evidence shows that the proposed variance would permit vehicles to “access” the front yard space for the purpose of loading and unloading.

133The Official Plan is clear that the protection and preservation of the Public Realm should be safeguarded throughout the City, including in Employment Areas. Chapter Two, 2.2.4.2. states the many objectives of employment areas, such as creating employment. The Policy also requires consideration of the impact of an industrial activity upon the Public Realm:

2.2.4.2.4(e) Employment Areas will be enhanced to ensure they are attractive and function well, through actions such as:

4(e) promoting a high quality public realm and creating comfortable streets, sidewalks, parks and open spaces for workers and landscaped streetscapes to promote pedestrian/transit use and attract new business ventures while supporting the efficient movement of goods.

134The Introduction to Chapter Three of the Official Plan states:

Each element of the public realm has its own roles and responsibilities. When designed together, these elements form a well-connected, walkable, attractive, safe, functional and accessible network which supports communities at a range of scales and characters. Development will enhance and extend, where appropriate, a high quality public realm and support the creation of complete communities inclusive of public streets, parks and open spaces for every scale of city building. The public realm policies provide guidance on the roles and key relationships between elements of the public realm as well as direction on the expansion, enhancement and maintenance of the public realm through development review and capital projects.

135Chapter Three Policy 3.1.1.6 is a policy about the streets in the Public Realm. It states, in part:

6. City streets are significant public open spaces which connect people and places and support the development of sustainable, economically vibrant and complete communities. New and existing City streets will incorporate a Complete Streets approach and be designed to perform their diverse roles by:

(a) balancing the needs and priorities of the various users and uses within the right-of-way, including provision for:

i. the safe and efficient movement of pedestrians of all ages and abilities, cyclists, transit vehicles and users, goods and services vehicles, emergency vehicles, and motorists across the network;

ii. space for trees, landscaping and green infrastructure;

iii. space for other street elements, such as utilities and services, snow and stormwater management, wayfinding, boulevard cafes, marketing and vending, and street furniture; and

iv. ensuring the safety of users of all ages and abilities;

(b) improving the quality and convenience of active transportation options within all communities by giving full consideration to the needs of pedestrians, cyclists and public transit users;

136Chapter 4.6 of the Official Plan, on Employment Areas, refers to the need to ensure a “high-quality public realm”. Specifically, Chapter 4.6.8(c) states that:

Development will contribute to the creation of competitive, attractive, highly functional Employment Areas by:

(c) providing a high quality public realm with a connected, easily understood, comfortable and safe network of streets, parks and accessible open spaces;

137Official Plan Policy 3.1.3.4 clearly discourages “vehicle access” in the space in front of an industrial building. Secondly, the Official Plan encourages the provision of a high quality public realm, including the safe and efficient use of sidewalks by pedestrians and cyclists. The Official Plan must be read as a complete and cohesive whole (O.P. Chapter 5.6). There can be no doubt that intensification of industry is an important objective of the Official Plan. However, industrial intensification and development go hand in hand with other objectives of the Official Plan, which actively promote the public realm while discouraging the presence of vehicles in the front space of a building. The warehouse itself is clearly consistent with the overall objective of a Core Employment Area. However, the variance is about the owner’s preferred method of utilizing the warehouse. This must be weighed against the intent of the Official Plan regarding access and the public realm.

138I find that the proposed variance for a front yard loading space does not meet the general intent and purpose of the Official Plan.

General Intent and Purpose of the Zoning By-law

The Side Yard Setbacks and the Driveway

141An important factor in considering the proposed variances for the north side yard setbacks and the south side driveway is that the lot frontage of the subject property is comparatively narrow, compared to those on most streets in the study area. In Mr. Igelman’s view, some allowance should be made for the fact that the zoning requirements for the side yard setbacks and the driveway would leave little room to construct a warehouse on the lot because it is 15.24m. wide. Under the Zoning By-law, the minimum driveway width is 6m. and the side yard setback minimum is 3m. Some flexibility is required to allow narrower and shallower lots to be used for a warehouse, which will intensify the use of the employment area, with the associated economic benefits.

142The Appellant modified his original proposal after discussion with the City, in order to increase the north side yard setback for the wall and to improve the landscaping along the north lot line and at the front of the building. There are no windows overlooking the northerly property. The Appellant has also limited the height of the building to 10.06m. fitting in with the other low-rise buildings on the street. The GFI is under the zoning standard and there are no variances required for the rear yard and front yard setbacks.

143The City takes no position on these variances to the side yard setbacks and the driveway width.

144I agree with Mr. Igelman that the proposed variances to the setbacks on the north side and the driveway width on the south side are consistent with the general intent and purpose of the Zoning By-law.

The Front Yard Loading Space

146The four tests under the Planning Act do not require that the Appellant prove a “need” for a variance. The site plan shows that the rear loading space and the front yard loading space are similar in size. Accessing the rear space requires vehicle to drive the length of the building and then (if necessary) be approximated to the overhead door. The Appellant’s position is that a front yard loading space would be more functional than the rear space. Trucks would have an easier time manoeuvring into the front space. The number of trucks would not be different, either way. The Appellant notes that parking is permitted in front of the building. The purpose of the By-law is to permit warehouses and other industrial uses in the Employment Area. As mentioned above, the Appellant explained that the proposed warehouse will provide economic benefits to the City and its citizens. The Appellant submits that the front yard loading space is important to creating a viable warehouse on a narrow and shallow lot.

147The City opposes the variance and asserts that it is inconsistent with the intent and purpose of the Zoning By-law which prohibits a front yard loading space. The City maintains that the warehouse will have a rear loading space and no study was produced to show that the rear space would pose difficulties in turning or manoeuvring. The Appellant’s proposal is for convenience, and that is not a reason to allow the variance.

148The City submits that no variances to permit a front loading space have been applied for or approved for Thirtieth Street, and only one such variance has been approved in the entire study area (at 34 Belvia Road.). The few existing properties with overhead doors and front spaces arose prior to the existing By-law and do not form part of the planned context within the Core Employment Area. The City asserts that allowing the instant Appeal would form a precedent that could inform future planned development, to the detriment of the safety of pedestrians and their enjoyment of the sidewalk. The City is concerned that the front yard loading at the subject property would lead to safety hazards for pedestrians.

149In my view, given that Thirtieth Street is a connector road, it is safe to assume that the side walks are actually used by pedestrians and (in the case of children) bicyclists. There are 34 residential properties on the street, and several industrial or commercial businesses. The street connects a Neighbourhood in the north to various properties in the south.

150The zoning restriction in By-law 60.20.90 prohibits a front yard loading space. The By-law intends that the front of the warehouse should not be used for loading. Accordingly, it prohibits space in a front yard that is intended for loading or that would allow loading to take place.

151The Appellant has not demonstrated that its proposed variance meets the test of being consistent with the General Intent and Purpose of the Zoning By-law. Very few properties on Thirtieth Street have a front yard loading space. The other proposed variances in this Appeal are consistent with the features of existing properties on the street and are more clearly linked to the narrow width the lot. The front yard loading space variance may improve the functionality of the warehouse but, as the site plan indicates, there is a rear loading space of approximately the same size. The proposal is not consistent with the intent of the By-law to avoid having a loading space at the front of industrial buildings.

152I find that the proposed variance to permit a front yard loading space does not satisfy the General Intent and Purpose of the Zoning By-law.

Are the Variances Desirable for the Development or Use of the Land? Are they Minor?

Side Yard Variances and Driveway Width

155In Mr. Igelman’s expert opinion, the variances to the side yard setback and the driveway width are desirable from a planning perspective and are minor. I agree. The driveway would not have an adverse impact of a planning nature on any other property. Many properties along the street have driveways that do not meet the current zoning standard. Moreover, there are many examples of properties with substandard side yard setbacks.

156The Tekavcic residence does not have any south-facing second floor windows overlooking the property, and the ground level on the south side is primarily taken up by a carport, the driveway and the rear yard. The Appellant intends to work with the City to select the appropriate trees that will grow tall along the north wall. There is no adverse impact of a planning nature.

157It is true that Mr. Tekavcic’s grandmother will be faced by a wall to the south of her property. This change is bound to affect her enjoyment of her property. However, a warehouse is a permitted use. The Appellant’s legal counsel assured Mr. Tekavcic that the Appellant does not intend to build higher than the planned 10.06m. and that the Owner is aware that vehicle repair is not permitted on the subject property.

158I find that the proposed setbacks to the north side yard and the variance to the driveway width along the south wall of the warehouse are desirable for the appropriate development and use of the land and are minor.

Front Yard Loading Space

160The Appellant must satisfy all four tests prescribed by the Planning Act. As it has not met the first two tests (above), I decline to make a finding on whether the proposed variance to permit a front yard loading space meets the other two tests.

Sensitive Use

162The Parties made submissions about “sensitive uses” as referenced in the Official Plan. Namely, in a Core Employment Area, is a legal non-conforming residential use a “sensitive use”? To what extent, if any, is buffering required between the industrial development and the non-conforming residential use? It is not necessary for the Tribunal to make this determination in order to decide the issues before it in this Appeal. I do note that the Appellant did have discussions with the Participant and did work with the City to address some of the concerns with its original proposal at the Committee of Adjustment.

CONCLUSION

163I find that the Proposed Variances to the side yard setbacks (to the exterior stairs and the north side yard) maintain the general intent and purpose of the Official Plan and the Zoning By-law, and that they are minor and desirable for the development and use of the land.

164I find that the Proposed Variance to permit a front yard loading space does not maintain the general intent of the Official Plan and the Zoning By-law.

165The requested variances for side yard setbacks and driveway width are required and justified for only certain areas, or sections, of the proposal, and approval of the variances should not constitute an unfettered decrease to the side yard setback and driveway area. In my final decision, the TLAB’s standard condition will be imposed to secure that the proposal is constructed in accordance with my findings. As I have found that the variance to allow a front yard loading space does not meet the statutory tests, a revised plan is required for the purposes of securing a final approval of the driveway width and side yard setbacks as has been justified in these proceedings.

DECISION AND ORDER

166The Applicant is directed to provide a revised site plan to the TLAB that is to be amended to eliminate the front yard loading space (and which will contain no other changes) within two months of the issuance of this Decision and Order.

167Failing receipt of a completed revised site plan within two months of this Decision and Order will result in refusal of all variances.