Tripi (Re), 2026 ONTLAB 390

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date:

2026-02-03

25 178290 S45 11 TLAB

Tripi (Re), 2026 ONTLAB 390

DECISION AND ORDER

Issuance Date:

February 3, 2026

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):

T. TRIPI

Applicant(s):

E. LEE

Property Address:

105 SCOLLARD ST

COA File No.:

24 238034 STE 11 MV (A0969/24TEY)

TLAB Case File No.:

25 178290 S45 11 TLAB

Hearing Date(s):

October 09, 2025, And November 06, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

B. MULLOCK

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Appellant

T. TRIPI

M. NEMANIC

Party

ABC RESIDENTS ASSOC.

R. A. BIGGART

Participant

P. LAMPREA

K. PATTILLO (BLAIR TRUDELL LAW PROFESSIONAL CORPORATION)

Participant

J. RICCI

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 located at 105 Scollard Street (subject property).

2The purpose of the variance application was to permit a restaurant with 40-indoor seats and 44-outdoor patio seats, with outdoor patio hours of operation restricted to 11:00 pm. A restaurant, including a patio, is not listed as a permitted use within the Commercial Residential zone. COA refused the application at its hearing on May 28, 2025.

3The property is a former row house building. It was damaged by fire on March 5, 2025. A large fire destroyed six properties directly across Scollard St to the north. That fire spread to the subject site on the south side. The fire damage was sufficient to cause the existing restaurant operation to close for repair. It has not since reopened.

4The subject site is designated Mixed Use (CR 2.0) in the Toronto Official Plan (OP).

5PURPOSE OF THE APPLICATION:

To increase the indoor seating capacity from 28 seats to 44 seats. Also, to maintain the outdoor patio seating capacity of 44 seats.

6REQUESTED VARIANCE(S) TO THE ZONING BY-LAW:

Section 8(1)(F), By-law 438-86

A Restaurant, including a patio, is not listed as a permitted use within the Commercial Residential (CR) zone. In this case, a Restaurant use, including a patio, is located on this site, within the CR zone.

7ABC Residents Association (ABC) is a party. Its representatives appeared in opposition to the appeal.

8I advised those present at the Hearing that, in accordance with Council direction, I had attended at 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

9Provincial 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.

10Provincial Policy – S. 3

A Decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2024 Provincial Planning Statement for the subject area.

11Variance – 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.

12Section 45(2)

Upon Appeal, the TLAB, upon any such application where any land, building or structure, on the day the pertinent by-law was passed, was lawfully used for a purpose prohibited by the by-law, may permit:

Legal Non-Conforming Use and Other Relief Applications– S. 45(2)(a)

i. the enlargement or extension of the building or structure, if the use that was made of the building or structure on the day the by-law was passed, or a use permitted under subclause

ii. continued until the date of the application to the committee, but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by-law was passed, or

iii. the use of such land, building or structure for a purpose that, in the opinion of the committee, is similar to the purpose for which it was used on the day the by-law was passed or is more compatible with the uses permitted by the by-law than the purpose for which it was used on the day the by-law was passed, if the use for a purpose prohibited by the by-law or another use for a purpose previously permitted by the committee continued until the date of the application to the committee; or

13Uses Defined Generally by the By-Law – S. 45(2)(b)

Where the uses of land, buildings or structures permitted in the by-law are defined in general terms, may permit the use of any land, building or structure for any purpose that, in the opinion of the Panel, conforms with the uses permitted in the by-law. R.S.O. 1990, c. P.13, s. 45 (2).

PRELIMINARY ISSUE – Day One

14At the commencement of the hearing on October 9, 2025, I learned that on October 8, 2025, the day before the hearing was set to start, counsel for ABC Residents Association had filed a motion, questioning TLAB’s jurisdiction to hear this appeal. I became aware of the late-filed motion the morning of October 9, 2025, as the hearing was set to commence.

15After hearing from counsel, I ruled that TLAB did indeed have jurisdiction to continue to hear the appeal, as I was advised that originally, years ago, COA had granted a Legal Non-Conforming Use (LNC) to operate a restaurant at the site, with conditions. This established the existence of a legal non-conforming right at the property. In 2025, the applicant brought an application to COA seeking to expand the use, as is its right. COA refused the application. The applicant initiated an appeal to TLAB, as is its right.

16Having made the determination to hear the appeal, and with parties now present, I commenced the hearing of the matter on the basis that expansion of a legal non-conforming use is a jurisdiction delegated to TLAB in the City of Toronto.

17Further, I advised the parties that I would subsequently judge the evidence presented with reference to the four-part test of s. 45(1) of the Planning Act.

SUMMARY OF EVIDENCE

18Mr. Nemancic called Kathy Kakish as an expert witness. Ms. Kakish holds a degree in Urban and Regional Planning and the PMP designation. The tribunal qualified Kathy Kakish to provide expert opinion evidence in her areas of land use development.

19Ms. Kakish noted that the proposal does not ask for a GFA increase. Interior walls are reconfigured, but the building exterior shell is not enlarged.

20Ms. Kakish reviewed the various uses which had applied to the subject site over its history.

21She reviewed in detail the variance history of the subject site, with respect to the Legal Non-Conforming Use (LNC) which now applies. This LNC allows a restaurant use with conditions. She cited the COA decisions of 2000 and 2010 in this regard.

22She gave evidence that the 2000 COA decision permitted a LNC permitting a restaurant use, indoors and rear yard, restricted to 8:00 pm closure.

23Ms. Kakish gave evidence that the COA decision of 2010 increased the seating capacity from 20 to 44 and restricted amplified music outside.

24Ms. Kakish opined that By-law 438-86 should be the bylaw to reference, not By-law 569 - 2013. The former was the bylaw in effect when the existing Legal Non-conforming use was approved by COA in 2010.

25Ms. Kakish noted that a large fire had taken place, destroying row houses on the north side of Scollard St in March 2025. The caused damage to 105 Scollard on the south side, causing it to close for repair.

26She described the streetscape of Scollard St. as being low-rise and possessing “old charm”. She opined that the proposal is in character with the Scollard St. streetscape.

27Ms. Kakish gave evidence that there is a private laneway which gives vehicle access to 80 and 100 Yorkville Ave, entering from Scollard St. The rear patio at 105 Scollard St. is not visible from that laneway, she noted. She noted that the 80 and 100 Yorkville property connects south to Yorkville Ave. via two pedestrian laneways.

28Ms Kakish had conducted a neighbourhood restaurant study. She presented the results of her study. It covered about twenty restaurant establishments, primarily located on Yorkville Ave and Cumberland St. The study provided data, site by site, of permitted indoor and outdoor seating capacities and hours of operation.

29Having surveyed the restaurants on nearby streets like Yorkville Ave. and Cumberland St., Ms. Kakish gave her conclusion that the approvals now sought align well with those already existing in very close proximity.

30Ms. Kakish summarized her restaurant study, as indicating that many nearby restaurants do have outdoor patios and that these patios often remain in operation until 2:00 AM.

31Ms Kakish described Scollard St. as a “busier street” within the Yorkville area. She described the area as one which has evolved far beyond being a quiet sleepy neighbourhood. For example, she noted it offers exclusive shopping on the “Mink Mile” of Bloor St. West, lying along its southern extremity. In its interior, the area experiences substantial pedestrian traffic, with laneways which offer walkability between streets. There are, she explained, many tall residential condo buildings, restaurants and well-designed public open spaces with water features and public seating.

32To improve the basis of her planning analysis, Ms. Kakish gave evidence that she had drawn upon historical sources, such as the former City of Toronto Zoning By-law and City historical records now physically housed at the Toronto Public Library.

33Ms. Kakish gave evidence that the subject site was originally a residential dwelling, and remained so until the early 1970’s. Then, over ensuing years, it saw uses such as a plant store and a bookstore.

34Ms. Kakish gave evidence that retail food service operations had operated at the subject site under a Legal Non-Conforming Use dating back to the 1980’s.

35A bakery business operated at the subject site, she gave evidence, also offering boxed lunches. Indoor soup and sandwich service followed, as the business gradually switched from a retail bakery to one offering cooked food in a restaurant format.

36The witness gave evidence that complaints had been minimal, only seven or eight having been made to the City during the period 2012 to March 2025. None of these, she noted, related to noise.

37Ms. Kakish provided detail of the complaints by neighbours, which had been received by the City over time. One involved canopy clearance, another signage. One involved leaf debris on the flat roof. Three others over time related to standing water on the roof. One involved waste bin and grease storage on site. One complaint, she gave evidence, cited fumes from the ventilation system. One in 2025 related to food waste, garbage and loose litter.

38In each case, Ms. Kakish noted, action had been taken to address the situation, indicating responsiveness on the part of restaurant management.

OFFICIAL PLAN

39Ms. Kakish gave evidence that the LNC at 105 Scollard St. was actually in effect prior to the Toronto Official Plan and Secondary Plan. The LNC use pre-dates both, she notes

40The restaurant operation has a long history of success, she opined, indicating that it meets the needs of the community. It plays a role in the neighbourhood, she opined.

ZONING BY-LAW

41Ms. Kakish gave evidence that a Mixed Use zoning designation applies to this portion of Scollard St. The restaurant use is “compatible” with other uses present, she opined. The seating capacity sought is consistent with other Yorkville restaurants. At only 1200 square feet, the operation is not physically large.

42Ms. Kakish gave evidence that the role of the Zoning By-law 569-2013 is to regulate properties on a go-forward basis, in her view. The LNC cannot be expected to meet the requirements of the Zoning By-law and the OP, which its history predates. The LNC came into being with reference to 1985 standards, she noted, rather than those of the OP and the current Zoning By-law.

43Mr. Kakish noted that the letters submitted by persons opposed to the application cite issues around odours, hours of operation, and delivery bicycles. Ms. Kakish gave evidence, however, that her examination of the City’s records indicates no fines levied or violations recorded over the period 2012 to March 2025.

DESIRABLE

44The expert witness gave evidence that the application is desirable. If the application is approved, the restaurant will continue to be a small one by Yorkville standards, with only a modestly intensified use. It will enhance Yorkville, serving as a draw and supporting the area’s pedestrian character. The 11:00 pm limitation is consistent with other Yorkville restaurants. Further, she notes that within 300m many larger patio operations already exist on Yorkville Ave and Cumberland St.

MINOR

45Ms. Kakish opined that the impacts of an approval would be minor. Its operational history attests to this, she continued, in that no actual violations or orders have been issued against the restaurant by the City. She advised that her research covered some 300 City files. It uncovered only one complaint relating to the site which cited odour, she noted.

46With respect to the building, the witness gave evidence that no expansion of the four walls was proposed. In her opinion, the existing building can comfortably handle the seating capacity proposed.

47Ms Kakish opined that the expanded hours meet the test of being minor. They are in line with other Yorkville properties nearby. 11:00 pm closing is common in Yorkville.

48Ms. Kakish said that concerns expressed about e-bikes in the pedestrian laneways do not, in her view, arise from the variance sought.

49The witness opined that the hours of operation limit sought, until 11:00 pm, is entirely typical of Yorkville. The request is modest, appropriate and of minor impact, in her view.

50Under cross examination, Ms. Kakish advised that the former owner went to COA seeking recognition of the 1985 use. Over time the business moved from baked goods and pastries to oven-baked cooked food. In 2000 and 2010, COA had approved the LNC, recognizing the use.

51Ms. Kakish opined that neither the OP nor the Zoning By-law is intended to be determinative. They are, rather, to be viewed as informative.

52With respect to the 2000 LNC and the 2010 LNC, Ms Kakish acknowledged that she could not explicitly state that the approval granted was under s. 45(2). She gave evidence that the reference appeared to be under s. 45 generally.

53Ms. Kakish gave evidence that Scollard St. is not 100% residential. It is rather zoned “Mixed Use”. The principle of “quiet enjoyment” does not strictly apply, in her view. She opined that everything varies depending on location. The proposal’s compatibility with restaurants on nearby Yorkville Ave. and Cumberland St. must be considered. They are “all very close” together, she advised.

54Ks. Kakish gave evidence that Scollard St. itself has other restaurants and shops, while going north from Scollard St, the streets do become more residential.

55Ms. Kakish advised that she had conducted no study of how the expanded uses requested by the proposal might impact adjacent residents. She opined that the absence of noise complaints was indication of historical compatibility with the neighbourhood.

56As next witness, Mr. Nemancic called Thanos Tripi, the owner of the restaurant operation at 105 Scollard St.

57Mr. Tripi gave evidence that he is a longtime Toronto restauranteur, who today owns and operates five Toronto restaurants. He gave an overview of the breadth of his industry experience and recognition received. He cited his insistence on top quality product, skilled staff and integrity. He offered insight into the operation of each of the five locations around the city.

58Mr. Tripi gave evidence that he is intent to return the fire-damaged 105 Scollard location to operation as Kafe Kleio. Doing so will require extensive repair and renovation, plus investment in the order of $ 1M. A design consultant of repute has undertaken the planning.

59He gave evidence that his intention is to operate the exterior during spring, summer and fall, a “three season patio”.

60.Mr. Tripi explained the restaurant industry metric of table turnover rate or “turns”. A measurement of profitability, he noted, the metric represents how frequently tables are seated by customers, cleared and reseated in a given time period.

61Mr. Tripi gave evidence that a business problem exists at 105 Scollard St. in this regard, due to the mandatory 8:00 pm closure. Two-and-a-half turns are needed for solid profitability, but the location can only deliver one turn, due to the 8:00 pm time constraint. Hence the application’s request for permission to remain open until 11:00 pm.

62Mr. Tripi gave evidence that the pre-fire operation had had to rely on take-out and delivery business, since constrained operating hours did not allow it to deliver two turns at the tables. Given an approval, he stated, Kafe Kleio would not rely on take-out food and delivery to the same extent as previously.

63He testified that only ten seats had been operating at the restaurant in the days before the fire.

64Mr. Tripi stated that the repair and renovation plans involve improvements. These include a new kitchen exhaust hood and mechanical air handling system, estimated to cost in the order of $150K. Outside, he stated, effort would be made to make exterior curb appeal strong. The operation would rank, in his view, as a “good part of Scollard” and would become “part of the fabric of the neighbourhood”.

65Mr. Tripi gave evidence that under his ownership of the business, while there had been some complaints to the City, no infractions had ultimately been recorded.

66Mr. Tripi advised that he is party to a twenty-year lease on the 105 Scollard St. premises.

67Under cross examination, Mr. Tripi confirmed that the landlord at 105 Scollard St. had informed him that use restrictions applied to the property before he bought the business, but that he had assumed it was legal to operate a restaurant there. He had not checked the zoning beforehand to find out if a restaurant could legally operate at 105 Scollard St.

68Mr. Tripi asserted that his goal is simply to be permitted the benefit of the same operating hours as other restaurants in Yorkville already have.

69Mr. Tripi acknowledged that he had never investigated the applicable zoning. He had, in his words, “no idea” of the zoning by-law applicable on Scollard St.

70Mr. Tripi acknowledged that he had no knowledge of the Official Plan or of the Zoning By-law.

71Mr. Tripi said that he had begun operating at 105 Scollard St. “about three years ago“, and that during this period the operation had been profitable under the restrictions.

72Mr. Tripi said that seated guests generate significantly less packaging waste than do “grab ‘n go” customers”. If the application is approved, he said that his plan might still include take-out food, depending on the number of interior seats permitted.

73Mr. Biggart called M Rendl as expert witness. Mr. Rendl holds the CPP, CIP and RPP designations. He was qualified by the tribunal to give evidence in land use planning.

74Mr. Rendl gave evidence that various layers of policy documents apply to the Yorkville neighbourhood.

75He gave evidence that he had made the decision to accept the retainer from ABC Residents Association, based on his evaluation that the appeal did not have merit.

76Mr. Rendl gave evidence that the lot at 105 Scollard St. has a 7.6 m width. The character of Scollard St. near the 105 Scollard St. property can be described as 2 and 3 storey row house form buildings. In the subject section of Scollard St. between Hazelton Ave. and Bay St. there are no other restaurants. Office and commercial uses exist there, he noted

77The other Scollard St. restaurants referred to by Ms. Kakish, are located east of Bay St, he notes. Mr. Rendl gave evidence that there are two restaurants on the section of Scollard St. east of Bay St. going towards Yonge St. He noted there are none, however, west of Bay St in the immediate block of the subject property.

78It was Mr. Rendl’s evidence that a restaurant prohibition applies to the section of Scollard St. between Hazelton Ave. and Bay St. No eating establishments are permitted under CR 2349.

79The laneway serving 80 and 100 Yorkville Ave. is not owned by the City, he noted.

80Mr. Rendl noted his disagreement with Ms. Kakish’s statement that the OP is intended to be viewed as “informative not determinative”. His evidence was that the OP is rather intended to be determinative. Judged against the OP, he asserted, if an application fails one of the four tests, then the application fails.

81Mr. Rendl gave evidence that the current application itself does not cite reliance on s. 45(2). In his view, if that had been the appellant’s intention, it should have been clearly stated in the application.

82Mr. Rendl asserted that the evidence presented in support of the application switches back and forth in its reference between s. 45(1) and s. 45(2) of the Planning Act.

83Mr Rendl opined that the purpose and intent of the Zoning By-law is to ensure that development is compatible with its surroundings.

84Mr. Rendl gave evidence that no variance has ever been granted, with respect to the 105 Scollard St. property, under, Zoning By-law 569-2013. The variances granted were under the previous By-law, 438.86.

85He gave his opinion that the new By-law, 569-2013, does not erase those previous variances. They remain in effect, in his view.

86Mr. Rendl gave evidence that ABC had been an active party in the 2000 and 2010 COA hearings. At that time, ABC had carefully conferred with the then-applicant on the conditions of an approval. The conditions granted by COA represented their mutual agreement.

87Mr. Rendl opied that the intensity of the restaurant use proposed today is substantially greater than that granted in 2010, with the agreement of ABC.

88He opined that the proposal would be better suited to a Yorkville main street location, like Yorkville Ave. or Cumberland St., where restaurant uses are permitted.

89Mr. Rendl noted, however, that the particular Mixed Use zoning designation which applies today to the section of Scollard St. between Hazelton Ave. and Bay St. today, does not permit a restaurant use. In his view, the Zoning By-law deliberately disallows restaurants on this section of Scollard St. west of Bay St. He opined that city planners write zoning by-laws in order to avoid creating conflicting uses.

90This section of Scollard St. is narrow in width and one-way, he notes. No side yard setbacks exist. This section of street has residents living in low-rise buildings. There are also commercial uses. With respect to those nearby residents, in his view, other uses must be sensitive in terms of their impact and compatibility.

91In Mr. Rendl’s view, these factors considered, the proposal fails to satisfy the test of supporting the intent and purpose of the Zoning By-law. An expanded restaurant operation would have more impacts on the residents, in his view.

92In his view, the proposal is not desirable for the site. This is due to the greater intensity of restaurant-related operating impacts, associated with expanded seating and hours.

93In Mr. Rendl’s view, the application does not satisfy the test of being minor. The adverse impacts are significant. He described it as the third application over the years asking for successively more seating and longer hours, in a location where restaurants are not permitted.

94He opined that the number of letters received in opposition is high.

95Mr Rendl opined that the proposal represents a significant departure from the current use, which is limited.

96He opined that the discussion of the two by-laws, the past one and the current one, becomes immaterial. Both by-laws, he notes, clearly do not permit a restaurant use at this location.

97He opined generally that COA would not grant a variance with respect to a by-law which no longer applies. The fact of the waiver, he opined, absolves the City from any responsibility in this regard.

98Mr. Rendl gave evidence that in his view the applications fail to meet each of the four tests.

99Under cross examination, Mr. Rendl acknowledged that he is not a restaurant analyst or a restaurant market analyst.

100Mr. Rendl gave evidence that in his view the role of the Zoning By-law is to separate uses, which would be in conflict with one another.

101Asked to define the meaning of “compatible” with respect to uses, Mr. Rendl responded that what he understands to be meant by compatible, are uses which “co-exist in harmony”.

ISSUES AND ANALYSIS

102Certain matters were clear from the evidence. In Yorkville, competing and potentially conflicting uses exist within close proximity to each other. Amidst these mixed uses, the question of balance becomes key. The residents of both high-rise residential condominiums and low-rise residential dwellings exist in close proximity to many restaurants operations. All this takes place in a dense downtown neighbourhood, which by design attracts visitors and residents.

103In this instance, the task of TLAB is to adjudicate the application with reference to s. 45(1) of the Planning Act, rather than s. 45(2). This was laid out at hearing by the tribunal during the hearing of Preliminary Matters. TLAB must now decide whether the intent and purpose of the Official Plan and the Zoning By-law are maintained? Further, is the application both desirable and minor?

104The tribunal views the current variance as being sought under By-law 569-2013. I agree with the evidence of Mr. Rendl in this regard. The appellant submitted the application citing By-law 438.36, under a Zoning Review Waiver. The 105 Scollard St. property is not, however, specifically identified in City documents as a property where By-law 438.36 continues in effect.

105Ms. Kakish reviewed the various uses which had taken place at the subject site over its history. She reviewed the variance history of the subject site with respect to the LNC. The evidence she presented demonstrated that a retail food service and a modest daytime, café-style use had been continuous at 105 Scollard St. since before the time of its prohibition by the by-law.

106The approval of an LNC rests on the principle that a zoning by-law which introduces new restrictions should not deny a landowner of their right to use the property in the same manner they had used it, prior to those new restrictions coming into effect.

107In my finding, the LNC recognized a small scale restaurant serving lunches to the local neighbourhood. Strict conditions were attached to the LNC in 2000 and 2010 in order to restrict the ongoing use to that modest scale, on a block of Scollard St where restaurants are prohibited. In my view, the conditions were attached to permanently contain the adverse impacts on neighbours of a restaurant operating at that scale. To enlarge that use would be to ignore the intent of the Zoning By-law, not to maintain its intent and purpose.

108The proposed intensification of restaurant activities well into the evening in an enlarged capacity format, would represent an overreach adversely impacting the interests of neighbours, in my view, compared to the intensity of uses which existed before.

109In my finding, the LNC was not intended to support a future case for new, less strict conditions on a larger restaurant operation on the site, operating with expanded seating capacity operating well into the evening. This portion of Scollard St., in my view, is clearly not intended to become a restaurant area.

110Ms. Kakish reviewed each of the complaints made by neighbours to the City. This evidence indicated that restaurant management at 105 Scollard St. over time had been responsive to complaints, with the result that ultimately no violations or fines were recorded by the City. Important to note, however, Ms. Kakish did not give evidence that the complaints about parked delivery trucks, odour, noise and garbage were baseless or unfounded.

111Clearly, in my view, the existing restaurant use does involve impacts for neighbours. In my view, this is established. Trucks park on the street to deliver food supplies, bikes come and go to pick up delivery meals, air containing food odours is exhausted mechanically from the kitchen. The conditions attached to the 2010 LNC were designed to contain these impacts

112Ms. Kakish draws in her evidence on restaurant seating capacities and hours of operation on nearby streets like Yorkville Ave. and Cumberland St. In my finding, Ms. Kakish’s survey of the restaurants on nearby streets is not persuasive, however, by way of constituting sufficient grounds to conclude that similar seating capacities and hours of operation should be permitted at 105 Scollard St. in the interest of fairness.

113In her evidence, Ms. Kakish leans heavily on seating capacities and hours on these nearby streets where restaurants are permitted. I do not find, however, that this evidence should be extrapolated into grounds for permitting a variance on a section of a street where restaurants are prohibited.

114In my finding, the subject portion of Scollard St. is zoned CR 2.0. Restaurants are prohibited. By contrast, just to the south, Yorkville Ave. and Cumberland St. are zoned CR 3.0. This designation permits shops, restaurants and offices. Indeed, a dense concentration of restaurants exists on these two streets. As Ms. Kakish and Mr. Tripi give evidence, this concentration is physically as little as 300 m distant from 105 Scollard St.

115I prefer the evidence of Mr. Rendl, however, in this regard. His evidence acknowledges that in Yorkville competing uses do co-exist in close proximity to each other. This is a confined geographic area. I agree with his evidence that the differences in zoning, street to street, are intentional. Planners made these zoning distinctions in an effort to protect the character of the area and to allow for transitions, in the light of the dense concentration.

116In my opinion, the zoning has intentionally never been revised to allow restaurants on this portion of Scollard St. in an intentional effort to maintain uses less intensive than those permitted on Yorkville Ave. and Cumberland St.

117In my finding, Scollard St. experiences neither daytime nor evening pedestrian or vehicular traffic to the degree to which Yorkville Ave. and Cumberland St. do. I agree this is by zoning intention, as Mr. Rendle gives evidence.

118Mr.Tripi gave his opinion as a professional restauranteur, that business outcomes at 105 Scollard St. needed to be improved. Using the metric of customer turnover on a given day, he illustrated his projection of how eat-in business outcomes could be improved at 105 Scollard St., were the application to be allowed.

119Mr.Tripi’s evidence with respect to take-out business was that it might need to continue and to the degree he would determine, in the light of business operating needs. Thus, future issues involving parked delivery trucks and bikes on the laneways at 80 and 100 Yorkville potentially remain.

120The consideration of the restaurant business case, however, does not stand as the purview of TLAB. TLAB must review the evidence in light of the four tests of s. 45(1) of the Planning Act.

121I reviewed the letters received. There are in the order of eleven letters in support of the application, while about eighteen received oppose it. Those in support cite the industry professionalism of the owner, for example. Those opposing predominantly cite concerns about parked food delivery trucks, patio noise, odours and smoke from the kitchen exhaust hood, and delivery e-bikes transiting the pedestrian laneway as a shortcut.

122In my finding, the proposal does not satisfy the test of being desirable. A more intensive restaurant use would lead to more adverse impacts for nearby residents. This does not respect and reinforce the character of this section of Scollard St.

123Neither does the proposal satisfy the test of being minor. It seeks a significant enlargement of the nature and scale of the use, expanding it well into the evening with more patrons coming and going. In my finding, the increased intensity of the use would come with increased adverse impacts, which are incompatible with respect to the needs of the residents in a mixed use area.

CONCLUSION

124A restaurant use is not permitted in the subject section of Scollard St. In my finding, the Legal Non-Conforming Use approved by COA in its 2000 and 2010 decisions with strict conditions attached, was intended to permanently limit the use to then extant levels.

125In my finding, recognition at that time of the restaurant prohibition is precisely the reason that strict conditions were attached to the LNC of 2010. The Legal Non-Conforming Use protects the prior lawful use from the prohibition imposed by a subsequent zoning by-law. A modest daytime restaurant use had existed prior to By-law 569-2013. The conditions were designed to allow that modest level of use to continue, but under restriction and containment on a site where a restaurant use had become prohibited.

126The intensified extent of the use now proposed constitutes a significant enlargement of that use. It would bring more adverse impacts to neighbours. The proposed variance and expanded conditions now sought do not satisfy the four tests of s. 45(1) of the Planning Act, either individually or cumulatively.

127The degree to which the property use is proposed to be intensified, in terms of capacity and hours, would bring increased inconvenience to neighbours. The proposal neither maintains the intent and purpose of the Official plan or the Zoning By-law, nor does it satisfy the tests of being desirable and minor.

DECISION AND ORDER

128The appeal is dismissed. The Committee of Adjustment decision noted above is final and binding, and the file of the Toronto Local Appeal Body is closed.

B. Mullock

Panel Member