ISSUE DATE

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December 18, 2012 PL120648 Ontario Municipal Board Commission des affaires municipales de l’Ontario

IN THE MATTER OF subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended Applicant and Appellant: Subject: Variance from By-law No.: Property Address/Description: Municipality: Municipal File No.: OMB Case No.: OMB File No.: Riotrin Properties (Bathurst) Inc. Minor Variance 438-86 410-446 Bathurst Street City of Toronto A09681/11TEY PL120648 PL120648

IN THE MATTER OF subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended Referred by: Subject: Property Address/Description: Municipality: OMB Case No.: OMB File No.: Riotrin Properties (Bathurst) Inc. Site Plan 410-446 Bathurst Street City of Toronto PL120648 PL120772

APPEARANCES: Parties Riotrin Properties (Bathurst) Inc. City of Toronto D. Perlman Counsel M. Noskiewicz B. O’Callaghan

DECISION DELIVERED BY C. HEFFERON AND ORDER OF THE BOARD BACKGROUND [1] The following background information was not disputed.

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[2] Riotrin Properties (Bathurst) Inc. (“Riotrin”) has acquired a beneficial interest in four properties (“Riotrin site”) on the west side of Bathurst Street midway between College Street and Dundas Street West. Bathurst Street is a main north/south artery. The Riotrin site is municipally known as 410 – 440 Bathurst Street. [3] A public lane running between College Street and Dundas Street West separates the Riotrin site from the rear yards of the residential area on the east side of Markham Street. The laneway varies in width; the portion behind the Riotrin site is 3.6 m wide, which is below the City of Toronto (“City”) standard of 7.5 m for 2-way public lanes. The east side of Bathurst Street opposite the Riotrin site is occupied by detached and semidetached homes of varying age and condition. The Riotrin site is well-served by public transit in the form of streetcars, which run on Bathurst Street as well as on College Street and Dundas Street West. [4] One of the properties on the Riotrin site is the former home of Kromer Radio. Kromer Radio was for several decades a Toronto landmark; it closed its doors for good in 2012. The other properties include a parking lot, the Sunnyside Auto Body shop, and the SESCO electrical supply building. SESCO is primarily a distributor of materials to the electrical contracting trade but it also does some retail sales. [5] The Riotrin site occupies a total land area of 0.49 ha (1.21 acres). Photos of the buildings occupying the site and other buildings on this stretch of Bathurst Street are exhibited to the evidence as Exhibit 5. [6] Riotrin proposes to demolish the existing structures on the site and construct a 3storey retail building approximately 20 m high, having a gross floor area (“GFA”) of approximately 12,000 sq m (125,000 sq ft) and underground parking for approximately 320 cars. It is proposed to configure the ground level of the new building into approximately ten individual retail areas, at least six of which will have no relationship with the tenant or tenants that will occupy the second and third floors. A loading area for trucks is located on the ground level at the south end of the building. [7] The underground parking lot and the loading docks are both accessed from Bathurst Street via a combined entrance/exit at the south end of the building. The drawings and floor plans are entered into evidence as Exhibit 8.

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[8] It is proposed to locate the entrance/exit directly opposite Nassau Street, a local street running between Bathurst Street on the west and Spadina Avenue on the east. The Nassau Street/Bathurst Street intersection is signalized. As it approaches Spadina Avenue, Nassau Street runs through the Kensington Market. The historic market itself begins approximately 750 m east of the Riotrin site. Nassau Street also serves as one of the access points for the large staff parking garage and the emergency entrance for Toronto Western Hospital (“TWH”), which occupies the entire block bordered by Bathurst Street on the west, Nassau Street on the north, Wales and Carlyle Streets on the east and Dundas Street West on the south. [9] It is proposed to re-locate the southbound TTC streetcar stop to the corner of Bathurst and Nassau Streets from its current location, which is an estimated 100 m north of Nassau Street on the west side of Bathurst Street. [10] David Perlman, who said he is a long time resident of the nearby Kensington Market neighbourhood, was granted party status at the hearing. He was not represented by counsel or by expert witnesses. THE MATTERS BEFORE THE BOARD [11] Two matters are before the Board in the proceedings:  Riotrin has appealed the May 30, 2012 decision of the City of Toronto Committee of Adjustment (“Committee”), which refused its application for eight minor variances from the provisions of City of Toronto Zoning By-law 438-86 (“By-law”). Also before the Board is the proposed site plan for the project. The plans and drawings as modified to reflect the May 28, 2012 comments from the City Planning Department are entered in evidence as Exhibit 8. The Site Plan revisions summary is entered in evidence as Exhibit 3, Tab 16. Reduced scale copies of the revised and plans are entered in evidence as Exhibit 3, Tabs 16 a-c. [12] The appeal is opposed by the City of Toronto (“City”) and by Mr. Perlman.

-4EXPERT WITNESSES Retained by Riotrin 

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Mr. P. Smith, RPP, was qualified by the Board to present opinion evidence on land use planning Mr. D. Annand, a land economist, was qualified to present opinion evidence on retail marketing Mr. S. Krossey, PEng, was qualified to present evidence on transportation planning and parking.

Subpoenaed by Riotrin  Ms. L. MacDonald, RPP, who was qualified to present opinion evidence on land use planning. Ms. MacDonald is Manager, City of Toronto Planning Division. She appeared under summons of Riotrin.

Retained by the City  Mr. F. Romano, RPP, was qualified by the Board to present opinion evidence on land use planning.

VARIANCES REQUESTED [13] Riotrin has requested eight minor variances from the provisions of the By-law:
REQUESTED VARIANCE(S) TO THE ZONING BY-LAW Modified to reflect May 28, 2012 Planning Report recommendations 1. Section 12(2)270(a)(i), By-law 438-86 No building shall be erected or used for any purpose permitted in sections 8(1)(f)(b)(iv) or 9(1)(f)(b)(iv) and (xi), where the total non-residential gross floor area used for such purpose is greater than the amount which existed 2 on the lot in July 20, 1993, plus an additional 1,800 m . The new building will be greater than the existing non-residential gross floor 2 area, plus an additional 1,800 m . Section 12(2)270(a)(ii), By-law 438-86 No building shall be erected or used for any purpose permitted in sections 8(1)(f)(b)(iv) or 9(1)(f)(b)(iv) and (xi), provided the total non-residential gross floor area is not greater than the amount permitted on the lot by sections

2.

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8(3) Part I 2 and 9(3) Part I 2 & 3 (9,874 m ). The new building will have a maximum non-residential gross floor area of 2 12,000 m . 3. Section 12(2)270(a)(iii), By-law 438-86 No building shall be erected or used for any purpose permitted in sections 8(1)(f)(b)(iv) or 9(1)(f)(b)(iv) and (xi), provided no single retail or service use, unless existing on August 29, 1994 exceeds a non-residential gross floor 2 area of 8,000 m . The proposed store “C” will have a maximum non-residential gross floor 2 area of 8,800 m . Section 4(2), By-law 438-86 The maximum permitted height is 14.0 m. The new building will have a height of 20.0 m. Section 8(3) Part I 2, By-law 438-86 The maximum permitted non-residential gross floor area is equal to 2.0 2 times the area of the lot (9,874 m ). The new building will have a non-residential gross floor area equal to 2.45 2 times the area of the lot (12,000 m ). Section 8(3) Part II 4(A), By-law 438-86 The minimum required setback for a building from a lot in a residential or park district is 7.5 m. The new building will have a setback of 5.5 m. Section 8(3) Part II 4(C)(I), By-law 438-86 No building shall penetrate the 45 degree angular plane projected over the lot from an elevation of 13 m above the average elevation of the ground at the street line. The new building will penetrate the 45 degree angular plane. Section 8(3) Part II 4(C)(III), By-law 438-86 A building shall be within the 45 degree angular plane projected over the lot from an elevation of 10 m above the average elevation of the ground at a distance of 7.5 from a lot in a residential or park district. The extent of penetration into the 45 degree angular plane projected over the lot from an elevation of 10m above the average elevation of the ground at a distance of 7.5m from a lot in a residential or park district not exceed that which is illustrated in the attached Attachment nos. 1 and 2 from the Planning Report dated May 28, 2012 concerning this matter.

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[14] The Board considered the amendments to the minor variance application under the provisions of s. 45(18.1) and 45(18.1.1) of the Planning Act (“Act”) and found that the modifications made to the requested variances to reflect the May 28, 2012 Planning Report recommendations are minor and that notice under s. 45(18.1) of the Act is not required.

-6STATUTORY CONTEXT

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[15] In order for a variance from the provisions of a municipal zoning by-law to be authorized it must satisfy the four tests under s. 45(1) of the Act. It must conform to the general intent and purpose of both the official plan and zoning by-law for the municipality; it must be minor; and it must be desirable for the appropriate development of the property. If it fails even one of these tests, the Board must refuse to authorize it. [16] Site Plan Approval is discretionary. However, as a condition of Site Plan

Approval under s. 41(4) of the Act, the applicant may also be required to enter into an agreement with the City dealing with the matters set out in s. 41(7) of the Act. CITY’S POSITION [17] The City’s argument against the proposal is that the requested variances are contrary to the general intent and purpose of both the City of Toronto Official Plan (“OP”) and the By-law and so fail two of the four tests of s. 45(1) of the Act.
  Under policy 4.5.3 of the OP, the proposed development would require an amendment to the By-law; s. 12(2) 270 (a) and (b) of the By-law, which were enacted by Council on July 20, 1993, amended the By-law, which restricts the entry of large format, stand-alone retail stores within the city limits of what was then the City of Toronto.

RIOTRIN’S POSITION [18] Riotrin contends that the large format, stand-alone retail provision in OP policy 4.5.3 only prohibits suburban-style shopping centres and power centres surrounded by parking without a zoning by-law amendment. It does not refer to what Riotrin characterized as “urban-style, large format” stores such as it proposes for the subject lands. In evidence, it pointed to the Riotrin 2010 development at the southwest corner of Queen Street West and Portland Street as an example of a successful, large format, urban-style retail development that did not require an amendment to the zoning by-law. [19] The experts retained by Riotrin also pointed to the recent re-development of Maple Leaf Gardens with its 9,000 sq m plus supermarket and associated retail as another example of an urban-style, large format retail development that proceeded via a minor variance application rather than by way of a zoning by-law amendment.

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[20] Riotrin also contends that it had been in discussions with City staff on the subject proposal for a year or more before it decided to proceed by way of an application for minor variances. It maintains that at no time during this period did City staff advise that an amendment to the zoning by-law would be required. MR. PERLMAN’S POSITION [21] Mr. Perlman submitted that he is concerned primarily about the impact of the proposed development on the viability of the mostly family-owned and operated smallscale retail food and other merchants both in the nearby historic Kensington Market and on Dundas Street West near Bathurst Street. He pointed to the entry of the chain supermarket and large format store at Dundas Street West and Shaw Street on the western edge of the Little Italy neighbourhood in the 1990s. He contends that supermarket drove out virtually all of the family-owned food stores in the nearby Little Italy neighbourhood, many of which had operated for decades. He maintains that if any large format supermarket were to occupy the proposed development, normal supermarket pricing practices would quickly decimate the Kensington Market retail food stores. This, he submitted, would completely destroy the character of this historic area. PARTICIPANTS POSITION [22] A number of local residents presented evidence at the hearing. The following were qualified as participants to these proceedings:          Mr. D. Yu Mr. S. and Ms. E. Winer (Mr. Yu read their letter into evidence) Mr. S. Amlami Ms. E. Magner Mr. G. Hollings Mr. A. Overholt Ms. K. Mulholland (Mr. Overholt read her letter into evidence) Ms. E. Robb Ms. L. Solish

-8  [23] Ms. J. Robb Mr. M. Solway

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The issues raised by the participants who, with the exception of Mr. Solway, are

all local residents, can be grouped into the following categories:  Perceived adverse impact on the public laneway from trucks nosing (sic) into the laneway to line up at the loading dock: Exhibit 3, Tab 16C shows that standard 71 feet long tractor trailer units will have to drive forward into the public laneway to partially straighten out so that they can back up to the loading docks as they are currently designed;  Increased danger to pedestrians, cyclists, children from increased car and truck traffic (from said tractor trailer units) in laneway; Increased noise levels and annoyance from truck engines and air brakes as well as back up beepers from tractor trailer units partially entering the laneway at the rear of the building in order to back up to the loading docks; Increased congestion and traffic on Bathurst Street and Dundas Street West will increase delay for both automobile and streetcar traffic using those streets. The residents complain that these two streets are already severely congested; Increased congestion on Bathurst Street and Dundas Street West will impede ambulances and emergency vehicles on their way to the nearby TWH; Closing of handy informal access from the public laneway south of 229 Markham Street across the Kromer parking lot to Bathurst Street;  Perceived adverse impact on nearby Little Italy retail area on College Street and family-owned retail shops on Dundas Street West; Perceived adverse impact on long-term survival of the historic Kensington Market retail shops. Proposed development will destroy the existing character of the area;

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One participant characterized the built form of the proposed development as “urban blight”, which in his opinion would not be allowed today in “sophisticated world class cities like Paris or Berlin”, which, he said, Toronto aspires to emulate; Automobile infiltration into the neighbourhood streets by Riotrin shoppers searching for free parking was mentioned by several of the area residents. The Board heard from at least two of the residents of the nearby Kensington community that parking itself would impose even more of a parking burden on Kensington residents; competition for parking will be fierce once the new East Wing of TWH opens. One of the participants advised that the new East Wing of TWH will cater to disabled and rehab patients who typically park for free on Toronto streets. No evidence was provided that the new East Wing either will include additional parking or whether that additional parking will be adequate to meet the needs of its visitors, staff and patients.

EVIDENCE AND FINDINGS [24] Mark Noskiewicz submitted that Riotrin resolved to proceed via a minor variance application only after extensive discussion with City planning staff and the community. He called Ms. MacDonald, who is the senior City of Toronto Planning Department official for the subject area. Mr. Noskiewicz characterized Ms. MacDonald as Riotrin’s key contact person at the City on this proposal. [25] Ms. MacDonald, who was qualified by the Board to give opinion evidence on land use planning, testified that the City Planning Department Staff Report to the Committee on the Riotrin application, did not oppose it on either land use planning or other grounds. She also pointed out that the Staff Report made no comment on the advisability of the application’s proceeding by way of a minor variance to the By-law. [26] The Staff Report, which was exhibited to the evidence as Exhibit 3, Tab 9 recommended only, she testified, that if the Committee should approve the application, the Committee should make the approval subject to the list of conditions included in that Staff Report.

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[27] Ms. MacDonald advised the Board that any applicant always retains the option of applying for development approval either by way of a minor variance application or by way of an amendment to the zoning by-law. [28] The City did not dispute this point in its evidence.

[29] Mr. Smith, a qualified land use planner retained by Riotrin, and Mr. Romano, a qualified land use planner retained by the City each presented opposing opinion evidence on how Policy 4.5.3 of the OP, which was adopted by Council in 2005 and approved by the Ontario Municipal Board in June 2006, should be interpreted. OP policy 4.5.3 provides that:
Large scale, stand-alone retail stores and/or “power centres” are not permitted in Mixed Use Areas within the Central Waterfront and Downtown, and are permitted only through a zoning by-law amendment in other Mixed Use Areas. Where permitted, new large scale, stand-alone retail stores and/or “power centres” will ensure that: (a) Sufficient transportation capacity is available to accommodate the additional traffic generated by the development, resulting in an acceptable volume of traffic on adjacent or nearby streets; and The function and amenity of the area for businesses and residences and the economic health of nearby shopping districts are not adversely affected.

(b)

[30] Mr. Romano contends this policy is unequivocal on the point that large format, stand-alone retail proposals require an amendment to the By-law. He contends that the Riotrin proposal qualifies as both large format and stand-alone and therefore requires an amendment to the By-law. [31] Mr. Smith, on the other hand, testified that OP policy 4.5.3 applies only to large format, stand-alone, suburban-type stores. These stores are typically single-storey with a single tenant and are always surrounded by several acres of surface parking. The Riotrin proposal, he testified, is an urban-style store. The proposed three-storey, 20 m high building will occupy the entire subject lands and has both underground parking and interior loading docks. He explained that its research indicates that a significant number of customers will not use cars but will arrive by transit or on foot from the surrounding residential neighbourhoods.

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[32] Mr. Romano contended that the intent of OP policy 4.5.3 is clear from the language. It applies to all large format, stand-alone retail stores whether suburban in design (with large setbacks from the property lines and surface parking) or urban in design (with small or zero setbacks from the property lines and underground parking). [33] Disputing this, Mr. Smith pointed to RioCan’s new mixed use (residential/retail) complex at the southwest corner of Queen Street West and Portland Street, which was developed with Tribute Homes as an example of a large format, urban retail stores that secured development approval from the City by way of the minor variance. (RioCan is the parent company of Riotrin). The Queen/Portland development has a large residential component fronting on Richmond Street West as well as an estimated 4,500 sq m supermarket, comprising a food store and an apparel store, as well as a similarsize junior department store. The Board was told that the complex houses street level retail along Queen Street West. [34] Mr. Smith also pointed to the Canadian Tire Corporation (“CTC”) and Best Buy large format retail stores at Bay Street and Dundas Street West, as well as the redeveloped Maple Leaf Gardens with its large format supermarket as further examples of large format, urban-style retail stores that secured development approval via minor variances. [35] Mr. Romano maintained that none of these large format retail stores is “standalone” and each is characterized by unique features. Firstly, each is part of what he termed “a true mixed use complex”. In the case of the Queen/Portland development, there is both a retail and a residential component; in the case of the CTC and Best Buy stores at the southeast corner of Bay and Dundas Street West, there is a large institutional component (Ryerson University); in the case of Maple Leaf Gardens, Ryerson University maintains an ice arena/stadium as well as a fitness centre and offices above the supermarket. [36] The Board accepts Mr. Romano’s evidence and finds that the examples cited by Mr. Smith do not qualify as “stand-alone” retail stores since each is part of a mixed use development that also contains a significant non-retail component.

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[37] The Board is also persuaded by Mr. Romano’s evidence and finds that a fair interpretation of OP policy 4.5.3 is that it is Council’s clear intent that a development proposal such as the subject (Riotrin) application requires an amendment to the By-law. [38] On the evidence, then, the Board finds that the requested variances do not conform to the general intent and purpose of the OP. [39] Messrs. Smith and Romano also presented opposing evidence on what is the general intent and purpose of the By-law respecting large format, stand-alone retail stores within the (former) City of Toronto. Section 12(2) 270(a) of the By-law provides that:
No person shall, on any lot in any CR, MCR, RA, I or IC district, erect or use any building or construct in addition to an existing building, for any purpose permitted in s. 8 (1)(i)(b)(iv) or 9(1)(f)(a)(iv) and (xi), where the total non-residential gross floor area used for such purpose is (i) (ii) Greater than the amount that existed on the lot on July 30, 1993, plus an additional 1,800 square metres; and Provided the total non-residential gross floor area is not greater than the amount permitted on the lot by sections 8(3) PART 1, 2 and 9(3)PART 1, 2 and 3; and

(iii) Provided that no single retail or service use, unless existing on August 29, 1994, shall exceed a non-residential gross floor area of 8,000 square metres. The provisions of this paragraph, other than in respect of a retail-warehouse, shall not apply to lots located within the areas outlined by heavy lines on the following maps.

[40] Mr. Romano contended that s. 12(2) 270 of the By-law amended the By-law specifically to restrict the entry of large format, stand-alone retail stores within the city limits of what was then the City of Toronto, without an amendment to this By-law. [41] Again, Mr. Smith contended that this restriction applies only to suburban-style big box stores with large surface parking lots, and pointed to the examples cited above (namely, the CTC and Best Buy stores at Bay and Dundas; the Loblaws supermarket in Maple Leaf Gardens) as prime examples of large format, urban style stores in mixed use developments.

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[42] Section 12(2) 270(b) of the By-law sets down the permitted retail and service uses permitted in Mixed Use Areas. The Board notes that the list of uses provides for retail but that 12(2) 270(a) specifies that the retail will be part of a “mixed use” development. Mr. Smith testified that a single use development (such as what is proposed) is generally permitted within a mixed use area in Toronto. Mr. Romano did not disagree, but testified that that is not the intent of the By-law in the present instance. [43] Mr. Smith maintained that s. 12(2) 270 of the By-law, which was added in July

1993, is not intended to implement the current OP (which is the City of Toronto’s 2006 Official Plan) because the By-law, as amended, pre-dates the current OP by at least 13 years. Mr. Romano did not disagree with that point made by Mr. Smith, but maintained that the intent of this amendment to the By-law is clear: it is to restrict the entry of large format, stand-alone retail stores within the city limits of the (former) City of Toronto by requiring proposals first to be subjected to the rigorous scrutiny of Council that is typically required of an application to amend the Zoning By-law. [44] It is clear to this Panel that the intent of both OP and the By-law where large scale, standalone retail development is proposed is for Council itself to make the decision to approve it, and if it does decide to approve it, to determine the conditions, if any, of that approval. The Board therefore accepts Mr. Romano’s evidence and finds that the general intent and purpose of the By-law in this circumstance is to require the application to be subject to an amendment of the By-law. CONCLUSION [45] On the evidence, the Board finds that the requested minor variances fail at least two of the four tests of s. 45(1) of the Act. The Board cannot therefore authorize them. Having regard to this decision, the Board will dismiss the appeal respecting Site Plan Approval because the site plan is dependent for its legality on the minor variances sought in this application being granted. ORDER [46] [47] The Board orders that the appeal is dismissed. The Board orders that the requested variances are not authorized.

- 14 [48] The Board orders the Site Plan Approval appeal is dismissed.

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“C. Hefferon” C. HEFFERON MEMBER

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