Committee of Adjustment Appeal -

184 Sherbourne Street (Downtown)

The Toronto Community Council recommends that City Council confirm to the Ontario Municipal Board, the City of Toronto's position of opposing the appeal of the Committee of Adjustment decision refusing Application No. A199800854 respecting 184 Sherbourne Street.

The Toronto Community Council submits the following report (February 16, 1999) from the Commissioner of Urban Planning and Development Services:

Purpose:

To seek reaffirmation of Council's adoption of Report No. 11 of the Toronto Community Council at its meeting held on October 1 and 2, 1998, instructing the City Solicitor and the Commissioner of Urban Planning and Development Services to attend the Ontario Municipal Board hearing in defence of the Committee of Adjustment decision respecting 184 Sherbourne Street.

Source of Funds:

Not applicable.

Recommendation:

It is recommended that City Council confirm to the Ontario Municipal Board, the City of Toronto's position of opposing the appeal of the Committee of Adjustment decision refusing Application No. A199800854.

Background:

The City Solicitor and the Commissioner of Urban Planning and Development Services attended

the Ontario Municipal Board hearing to defend the Committee of Adjustment decision respecting 184 Sherbourne Street. The one day hearing commenced on November 30, 1998, and was adjourned at the request of the appellant to January 26, 1999, with four days set aside to allow more time for proceedings. On January 26, the hearing was further adjourned at the request of the appellant, with the Ontario Municipal Board issuing an order dated February 2, 1999, allowing four days for the hearing April 13, 14, 15 and 16, 1999, [Appendix "A"]. The Board member, M.A. Rosenberg, is seized of the matter.

In granting the second adjournment, the Board found that the elected Council of the City of Toronto should be given an opportunity to consider and debate the January, 1999 Report of the Mayor's Homelessness Action Task Force, Recommendation Number 103 and to consider whether in fact some, all or none of the recommendations in the report should be adopted and incorporated into Council policy. In addition, the Board found that the elected Council should be given extra time to consider the appeal and whether or not any compromise can be reached and/or whether or not appropriate conditions are warranted.

Comments:

The appellant's proposal:

The appellant is seeking to increase the number of dwelling rooms in an existing, licensed rooming house from 25 to 34. The appellant is seeking three variances:

proposed number of dwelling rooms - 34, permitted - 12;

proposed number of parking spaces - nine, required - 11, and;

proposed gross floor area in square metres - 906, permitted - 696.

This latest proposal should be seen in the context of earlier activity by the appellant from the late 1980's to the present time. In 1989, the appellant commenced consolidation and enlargement of the original pair of semi-detached houses on this site without a building permit and with the apparent purpose of establishing a rooming house. Following prosecution by the former City of Toronto, the appellant obtained approval from the City for a rooming house with 25 dwelling rooms by means of a favourable decision from the Committee of Adjustment, supported by the then Planning and Development Department, and a development agreement between the appellant and the City. Throughout these processes, the appellant represented the proposal with an "unexcavated basement".

This rooming house has also been licensed annually three times between 1995 and 1997 by the City, on the same basis, and has been the subject of regular fire prevention and buildings inspections ever since. City inspectors recorded unapproved occupancy in the basement in January and February,1998. They noted nine dwelling rooms in a basement area previously dry-walled shut. Subsequently, the Licensing Commissioner granted a conditional license for six months on May19,1998, to expire December 9, 1998. This license was conditional upon the basement being vacated by July 1, 1998 and the standards of the Fire Code being met. To date, these basement premises have not been vacated. The current application being appealed to the Ontario Municipal Board proposes a total of 34 dwelling rooms, with seven such rooms in the basement, along with two bathrooms, a kitchen and a storage room at that level.

The Report of the Mayor's Homelessness Action Task Force:

Recommendation No. 103 of this report states:

"Council should permit rooming houses as-of-right in commercial zones and multiple-unit residential zones on arterial roads throughout the City. Existing rooming houses that comply with health and safety standards should be legalized."

This report is an extensive exploration of the conditions that homeless people face and represents a passionate advocacy of their cause. This report does not deal with the planning and zoning standards appropriate for rooming houses, beyond recommending liberalization. The City of Toronto's standards for rooming house size were originally identified in planning reports considered by City Council in the 1970's, dealing with the general topic of bachelorettes . In May, 1970, City Council passed By-law 321-78 which amended the Zoning By-law and specified the number of twelve dwelling rooms to be permitted within a rooming house within an "R" district in the Central Area. This standard remains unchanged to the present time and may remain so in the future. Any new standards for rooming house size will be identified within the newly constituted City of Toronto, in due course and after studies, reports and Council deliberations. In the meantime, the existing standard is the only one to be observed and is more liberal than that of many other municipalities.

The four tests required for minor variances:

The appeal before the Ontario Municipal Board pertains to an intensification of use in a specific instance, raising the issue of the appropriate planning and zoning standards to be applied for this particular proposal. The applicant chose to pursue this proposal by means of an application to the Committee of Adjustment and, upon refusal, an appeal to the Board. The issue before the Board is whether the proposal meets the four tests required by the Planning Act. Failure to meet any one of the tests should mean that the appeal will be dismissed. The position of the City of Toronto is and should remain that this proposal does not meet these tests. These tests and the City's position relating to them are described below.

Are the variances minor in nature:

The proposed variances are not minor in nature. Thirty-four dwelling rooms represent almost three times the upper limit permitted by the Zoning By-law in an "R" district, in the Central Area, (twelve dwelling rooms). In this instance, the establishment of living space below grade, in direct contravention of City conditions agreed to by the appellant, represents the direct cause for non-compliance with the Zoning By-law with respect to gross floor area and the number of parking spaces required. The proposed number of dwelling rooms is only accompanied by an amount of amenity/recreation space that is both nominal and inadequate.

Are the variances desirable for the appropriate development or use of the land and building:

The applicant requires variances to maintain a development that, in size, greatly exceeds the norm prevalent for house-form buildings converted for use as rooming houses. A rooming house on this site represents a legitimate use, but not on a scale that sets an undesirable precedent, so as to potentially displace other legitimate users of these house-form buildings such as families with children.

Is the general intent and purpose of the Zoning By-law maintained:

The Zoning By-law permits rooming houses in "R3" districts in the Central Area while restricting their size to twelve dwelling units. The Zoning By-law does not place any constraints as to the number of rooming houses in a given area nor does it impose distancing requirements between them. The intent and purpose of the Zoning By-law is to permit rooming houses of a reasonable size while preventing other forms of residential uses catering to a wide mix of residents in terms of age, income and household size from being displaced. The Zoning By-law pertains to the South District of the City of Toronto and is, by comparison, generally more accommodating of the rooming house use than zoning by-laws of many other jurisdictions.

The Zoning By-law's numerical limit of twelve dwelling units has usually only been exceeded where the original house-form building was very large or where the original building had been established for other purposes such as a hotel or an apartment building. The applicant proposes to maintain an establishment with a number of dwelling rooms that greatly exceeds the norm within "R" districts for both the South District of the City of Toronto and the Central Area and is not within the general intent and purpose of the Zoning By-law.

Is the general intent and purpose of the Official Plan maintained:

The site is located within an area designated as Medium Density Residence Area by the Official Plan Part I and the South of Carlton Official Plan Part II. This proposal does not maintain the intent and purpose of the Official Plan, particularly, the Part II Plan with reference to Sections 2.1 and 3.3.1. In combination, these sections state City Council's policy to maintain and preserve the character of the South of Carlton area as a predominantly low rise residential area accommodating a wide mix of residents in terms of age, income and household size, including families with children, in low to medium rise building forms.

The proposed development represents a cumulation of practices which for the most part were illegally initiated and remain only partially legitimized. The appellant's practices have resulted in a development that appropriated existing housing stock and would create a facility of excessive scale for one particular use. This proposal does not maintain the character of the South Carlton area as it diminishes the potential for variety in the residential mix. This proposal does not maintain the general intent and purpose of the Official Plan.

Conclusion:

The appellant has, to date, through successive applications, received approvals to operate a rooming house of 25 dwelling rooms with beds on floor levels above grade. The current, approved scale of operations on the site represents a practical limit as to what should be permitted on the site. The appellant is free to operate rooming houses elsewhere in the City of Toronto and already does so at two other establishments of this kind.

Contact:

Bruce Gray

Tel. No. 392-0426

Email:bray@toronto.ca

The Toronto Community Council also submits the following report (February 17, 1999) from the City Solicitor:

Purpose:

To update Toronto Community Council on the Ontario Municipal Board ("the Board") Hearing held on January 26, 1999 regarding a minor variance application made by the owner ("the applicant") of 184 Sherbourne.

Funding Sources, Financial Implications and Impact Statement:

Not applicable.

Recommendations:

That this report be received for information.

Council Reference/Background/History:

At its meeting held on October 1 and 2, 1998, Toronto City Council adopted, without amendment, Clause No. 60 contained in Report No. 11 of Toronto Community Council, entitled "Committee of Adjustment Appeal- 184 Sherbourne Street (Downtown)". In so doing Council instructed the City Solicitor and the Commissioner of Urban Planning and Development Services ("the Commissioner") to attend the Board hearing in defence of the Committee of Adjustment ("the Committee") Decision respecting 184 Sherbourne Street.

The premises is operated as a licensed rooming house. The Committee, in its decision of July 21, 1998 denied the applicant's proposal to increase the number of dwelling rooms to 34, from its present permitted level of 25, by using the basement of the building for additional living space. The Committee unanimously held that the proposal would result in an over intensification of the use of the premises.

Comments and/or Discussion and/or Justification:

The appeal of the Committee decision was originally scheduled to be heard on November 3, 1998, but was adjourned by the Board to January 26, 1999 in order that sufficient time- four days- could be set aside to hear all of the evidence at once. At the rescheduled hearing, legal counsel for the applicant requested a further adjournment on the basis that Council should have a chance to (1) examine the Mayor's Homelessness Task Force recommendations, particularly Recommendation No. 103, which states that Council should permit rooming houses as-of-right on arterial roads, and (2) consider his settlement proposal, set out in a letter faxed to the City on January 25, 1999. That settlement offer is to "restrict" the number of dwelling rooms to 34 and to restrict the occupancy of those rooms to one person per room.

The City Solicitor opposed the adjournment request on the basis, in part, that:

(1) the settlement offer amounts to the same proposal opposed by Council at its October 1998 meeting;

(2)the City has long considered and debated the issue of homelessness and affordable housing;

(3)this particular hearing concerns a Planning Act application to increase the number of rooms in a rooming house which is already licensed; and

(4)the rooms at issue are occupied in contravention of an "Order to Comply" and the conditions attached to the applicant's Rooming House License such that an adjournment would permit the applicant to continue to operate illegally with impunity.

The Board adjourned the hearing on the basis that City Council should be given an opportunity to consider and debate the Task Force Report and to "consider whether in fact some, all or none of the recommendations in the report should be adopted and incorporated into council policy". Further, that Council should consider whether "any compromise can be reached and/or whether or not any appropriate conditions are warranted".

Toronto Community Council has before it for consideration the February 16, 1999 report of the Commissioner, entitled "Deferral of Committee of Adjustment Appeal hearing- 184 Sherbourne Street (Downtown)". In that report the Commissioner recommends that the City reaffirm its position with respect to this particular application and sets out planning reasons in support of this recommendation. Should Council adopt the Commissioner's Report, the City Solicitor and the Commissioner will attend the rescheduled hearing, set for April 13 to 16, 1999 in support of the Committee's decision that this specific proposal represents over intensification of the property.

Conclusions:

The Board has twice adjourned the hearing into an application to increase the number of dwelling rooms in the subject premises from 25 to 34. Most recently, the Board adjourned the matter to allow City Council time to consider (1) the Task Force recommendations and (2) its position on the specific application made by the owner of 184 Sherbourne Street. Should Council adopt the February 16, 1999 report of the Commissioner on this matter, the City will proceed with its original position at the rescheduled Board hearing.

Contact Name:

Marc Kemerer, Solicitor, Planning and Administrative Tribunal Law

Telephone: (416) 392-1228

Fax: (416) 392-7224

E-mail: mkemerer@toronto.ca

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(A copy of Appendix A referred to in the report dated February 16, 1999 from the Commissioner of Urban Planning and Development Services and background material appended to the report dated February 17, 1999 from the City Solicitor, is on file in the office of the City Clerk).