Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2023-06-26
21 137380 S45 02 TLAB
Toronto (City) v. Giallonardo, 2023 ONTLAB 105
DECISION AND ORDER
Issuance Date:
June 26, 2023
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):
City of Toronto
Applicant(s):
Peter Del Grosso
Property Address:
3 Hartfield Rd
COA File No.:
A0338/20EYK
TLAB Case File No.:
21 137380 S45 02 TLAB
Hearing Date(s):
February 28, 2022, May 12, 2022, May 13, 2022. August 9, 2022, August 17, 2022, March 14, 2023, and May 10, 2023
Decision Delivered By:
TLAB Panel Member S. Makuch
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
City of Toronto
D. Abimbola
J. Dexter
Applicant
P. Del Grosso
Party/Owner
A. Giallonardo
P. DeMelo
Expert Witness
L. Farhadi (City of Toronto)
Expert Witness
D. Keimel
Expert Witness
J. Sasso
Participant
E. Zucchiatti
Participant
N. Knutel
Participant
J. Knutel
INTRODUCTION AND CONTEXT
1This is an appeal by the City of Toronto from a decision the Committee of Adjustment granting a number of variances to permit the construction of a new detached dwelling with an integral garage in the Edenbridge-Humber Valley neighbourhood of Etobicoke. In addition there are number of neighbours who are participants in opposition to the variances. As the hearing proceeded the applicant sought to revise the plans and amend the application.
2The City consented to the applicant revising the plans and amending the application providing there was proper notice and time prior to the hearing commencing and it was not prejudiced in the presenting of evidence at the recommenced hearing. It was agreed by all the parties that the application could be amended and the plans revised on the terms set out in my order. The applicant presented revised plans and the hearing continued on the terms set out in my order. The variances thus sought are as follows.
- If a lot is beside one lot in the Residential Zone category, and that abutting lot has a building fronting on the same street and that building is, in whole or in part, 15.0 metres or less from the subject lot, the required minimum front yard setback is the front yard setback of that building on the abutting lot; 18.34 metres. The proposed front yard setback is 8.17 metres.
[10.5.40.70 (1)(A) Front Yard Setback - Averaging]
- (B) A platform without main walls, attached to or less than 0.3 metres from a building, with a floor higher than the first floor
of the building above established grade may encroach 1.5 metres into the required front yard setback, if it is no closer to a side
lot line than the required side yard setback.
The proposed platform encroaches 10.17 metres into the required front yard setback.
[10.5.40.60.(1) Platforms]
- A) The permitted maximum lot coverage is 33 percent of the lot area: 255.55 square metres.
The proposed lot coverage is 39 percent of the lot area: 305.5 square metres.
[10.20.30.40.(1) Maximum Lot Coverage]
- The permitted maximum height of the main pedestrian entrance above established grade is 1.2 metres.
The proposed height of the main pedestrian entrance above established grade is 1.51 metres.
[10.20.40.10.(6) Height of First Floor Above Established Grade]
- In the RD zone with a minimum required lot frontage of 18.0 metres or less, the permitted maximum building length for a detached house is 17.0 metres.
The proposed building length is 26.42 metres.[10.20.40.20.(1) Maximum Building Length if Required Lot Frontage is in Specified Range]
A) The permitted maximum height of a building or structure is 9.5 metres. The proposed height of the building is 10.14 metres.[10.20.40.10.(1) Maximum Height]
A)(i) The permitted maximum height of all front exterior main walls is 7.0 metres. The proposed height of the front exterior main walls is 8.32 metres.
A)(ii) The permitted maximum height of all rear exterior main walls is 7.0 metres. The proposed height of the rear exterior main walls is 8.32 metres.[10.20.40.10.(2) Maximum Height of Specified Pairs of Main Walls]
(D) The minimum side yard setback of a detached house that is 2 or more storeys on a lot with a lot frontage (ii) of 15.3 metres to 18.0 metres is 1.2 metres and the minimum aggregate side yard setbacks of both side yards is 20% of the lot frontage; 3.2 metres.The proposed aggregate side yard setback is 2.88 metres. [900.3.10 (28) Exception RD 28]
The by-law limits the maximum residential gross floor area to 165 square metres plus 25% of the lot area: 358.6 square metres. The proposed residential gross floor area is 613.2 square metres. [900.3.10(28)(C)].
Etobicoke Zoning by-law 1992-24.
The by-law limits the maximum building height to 9.5 metres. The proposed building height is 10.14 metres. [By-law 1992-24(1)(a)(1)].
The by-law limits the maximum soffit height to 6.5 metres. The proposed soffit height is 8.32 metres. [By-law
1992-24(1)(a)(2)].
THE LEGISLATIVE AND POLICY FRAMEWORK
3In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:
maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
are desirable for the appropriate development or use of the land; and
are minor.
SUMMARY OF EVIDENCE
4Of the 11 variances being sought, only four were in contention. They relate to front yard setback, length, coverage, and density. Generally, the evidence of the City planner was that the increases in these provisions resulted in a dwelling which was too large, indeed, an over-development of the site, and thus a building which did not respect and reinforce the character of the neighbourhood. That character was one which did not have dwellings as large and dense as that proposed. An examination of other approvals of variances in the area clearly demonstrated that the proposal would have a greater numerical density and lot coverage than other dwellings in the neighbourhood and that its reduction in front yard set back would make it appear more massive as it would be closer to the street. Moreover, it would not fit with the generous front yard setbacks of other dwellings on the street and thus disturb the rhythm of Hartfield.
5The overall evidence of the planner for the proponent was, of course, to the contrary. It was his opinion that the proposed dwelling fit with the character of the neighbourhood, that a number of the variances were technical in nature and resulted from the construction of a loggia at the rear of the dwelling rather than a deck. In his view the loggia was very similar to a deck in that it had no walls or roof although it was constructed as part of the dwelling and thus counted as lot coverage and density. In his opinion it did not add to overall massing of the dwelling and had no adverse impact on neighbouring properties.
6In his opinion the front yard setback was appropriate and the City’s technical determination of it was inappropriate as the proposed setback fit with other properties on the street. It was emphasized by the proponent that the City’s approach to analyzing the variances was technical and numerical in nature in that the City planner was not taking into account the nature of the proposal: a single family two story dwelling with an integral garage on a large lot and that such a development clearly “fit” in the neighbourhood. This was reinforced by the proponent’s planner’s opinion that there was no adverse impact from the proposal, contrary the concerns of the neighbouring property owners.
ISSUES AND ANALYSIS
7While the proponent criticized the City planners use of numerical information I find that such information when coupled with a visit to the neighbourhood is helpful. The numerical information, which was not demonstrated to be incorrect, was as follows.
8The length of the dwelling, without the loggia, would be 21.8m. This is a length greater than the vast majority of dwellings in the area.
9Only two variances for an increase in lot coverage have been recorded in the area and neither would result in a coverage as large as the proposed increase. The proposal would result in a lot coverage of 39%. The two approvals of lot coverages 33.4% and 35% were closer to the existing lot coverages in the area which comply with the bylaw. The permitted coverage on this lot would be substantially increased from 255.55m2 to 305.5m2. and would contribute to an increase in the appearance of the overall size or mass of the dwelling. This would especially be so from the yards of adjacent neighbours where the loggia, which would be at a higher elevation, could be seen above the fence line.
10The proposed floor area of 613.2m2 dramatically exceeds the permitted 358.6m2. This is a 71% increase beyond that permitted. While numerical figures alone are not necessarily determinative of whether a variance is minor they can clearly be indicative of the increase in size that will occur. The proposed building will be much larger than the bylaw permits, and this proposed increase far exceeds any of the approvals for increases in GFA in the area. The largest is a 94.7m2 increase at 33 Hartfield. The City planner demonstrated that even if the integral garage were excluded from the calculation of the proposed GFA, it would far exceed any approvals granted. The proposed increase in GFA would substantially increase the massing of the dwelling and create a dwelling that would therefore not respect and reinforce the character of the neighbour. The past approvals of increases in GFA and lot coverage are clear evidence of the character of the area and the need to ensure that buildings do not have the appearance of being an over-development, ie too large for the lots upon which they are situated. The size of the increase alone indicates a building that is too large to meet the test of minor under s. 45.
11The variance related to the front yard setback also raises the issue of massing and overdevelopment as it would allow the large building to be moved closer to the street and thus appear larger as the City planner indicated. Moreover, it would place the proposed dwelling closer to the street than other dwellings on the street and thus break the uniform setback which the bylaw attempts to create. As a result it would break the rhythm of the street frontages and be out of character. While one neighbour does not object to the variances and such an interruption of that rhythm, from the point of view of the official plan policy of respecting and reinforcing that character such a location is not desirable.
12I find that the information provided by the City about prior approvals and existing buildings clearly indicates that a dwelling of this coverage, density and location and length would not respect and reinforce the character of the area. The large size and location of such a dwelling on the lot would result in a building that would stand out and not fit as it would appear too big for the lot and the neighbourhood. In addition the size of the variances leads to the conclusion that they are not minor. Moreover, the loggia would, as the neighbours adjacent to Royal York Road stated, create an overlook and extend the building wall very close to their rear yards and above their rear fences. While in an urban area one can expect such situations, one can also expect those proposing construction to make every effort in advance of seeking approvals to minimize impacts on their neighbours’ rear yards, especially when there is a side yard to rear yard relationship. While I do not agree with the City planner that there is a concern about front yard privacy in this case the rear yard relationship is important.
CONCLUSION
13In conclusion, I find that the variances related to front yard setback, lot coverage, density and length should not be approved because they do not maintain the general intent of the official planned are not minor given their size (DeGasperis v. Toronto (City) Committee of Adjustment A.C.W.S. (3d) 752, 2005 CanLII 24263 (ON SCDC), 200 O.A.C. 392, 256 D.L.R. (4th) 566, 51 O.M.B.R. 1). I do not need to address the other two tests, nor conformity with provincial requirements with respect to these variances. Having refused to approve these variances there is no basis to approve the remaining variances in isolation of those refused.
DECISION AND ORDER
14The appeal is allowed and all variances are refused.
S. Makuch
Panel Member