Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2023-06-26
22 241764 S45 15 TLAB
Volkovs v. Toronto (City), 2023 ONTLAB 106
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):
MAKSIMS VOLKOVS
Applicant(s):
RICHARD WENGLE ARCHITECT INC
Property Address:
37 ROCHESTER AVE
COA File No.:
22 177483 NNY 15 MV (A0489/22NY)
TLAB Case File No.:
22 241764 S45 15 TLAB
Hearing Date(s):
May 30, 2023
Deadline Date for Closing Submissions/Undertakings:
May 15, 2023
Decision Delivered By:
D. Lombardi
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Applicant
RICHARD WENGLE ARCHITECT INC
Appellant
M. Volkovs
D. Bronskill
Party (TLAB)
City Of Toronto
A. Ward
Y. Peer
Party (TLAB)
C. Montgomery
Party (TLAB)
B. Swales
Party (TLAB)
A. Liadis
Party (TLAB)
S. Boon
Participant
L. Fullgraf
Participant
M. Lee
INTRODUCTION AND CONTEXT
1This Hearing arises from an Appeal by Maksims Volkovs (Owner/Appellant) of the decision of the City of Toronto (City) Committee of Adjustment (COA) refusing variances for the property known as 37 Rochester Avenue (subject property).
2The purpose of the application is to permit the Applicant to demolish the existing single detached home and an attached one-car garage and construct a new two-storey residential dwelling with an integral garage and vehicular access from Rochester Avenue (Application).
3The subject property is located on the south side of Rochester Avenue, between Dinnick Crescent to the west and St. Ives Crescent to the east, in the Lawrence Park neighbourhood.
4The subject property is designated Neighbourhoods in the City Official Plan (OP); it is zoned RD – Residential Detached (f15.0; d0.35) (x1432) under city-wide Zoning By-law 569-2013, which requires a minimum lot frontage of 15 metres and a maximum density of 0.35 times the area of the lot. The zoning category permits single detached dwellings.
5Maksims Volkovs, the owner of the subject property, appealed the COA’s decision to the Toronto Local Appeal Body (TLAB) on December 23, 2022, and the Tribunal set a date to hear the appeal matter for May 30, 2023.
6On May 29, 2023, the day prior to the scheduled TLAB Hearing, the Owner’s legal representative, Zachary Fleisher (Goodmans LLP), advised the TLAB by email that the Applicant had reached a settlement with both immediately adjacent neighbours, Christine Montgomery (39 Rochester Ave.) and Steven Boon (35 Rochester Ave.). Ms. Montgomery and Mr. Boon elected Party status in the Appeal.
7Pursuant to Rule 19.2 of the TLAB’s Rules of Practice and Procedure (Rules), Mr. Fleisher also filed a proposed Minutes of Settlement (MOS) with the TLAB which reflected the terms of the settlement reached with Parties Montgomery and Boon.
8In addition, he served the proposed MOS on the other three (3) Parties and two (2) Participants in the appeal matter, above cited, as required by Rule 19.2.
9As a result of the proposed settlement, Mr. Fleisher also advised the TLAB that the City of Toronto, a Party in the matter, would not be opposing the Application before the TLAB.
10In a subsequent email to the Tribunal, he advised that given the above-referenced settlement, Parties Lutz Fullgraf (on behalf of the Lawrence Park Ratepayers Association (LPRA)) and Michelle Lee would not be participating in the Hearing, while Party Christopher Fuoco had formerly withdrawn as a Participant in the matter.
11Finally, Mr. Fleisher confirmed in his email that the MOS had been circulated to Brian Swales and Amalia Liadis, both of whom had filed a Notice of Intention to be Party but had not filed any supporting materials. Neither Mr. Swales nor Ms. Liadis had responded to the MOS.
12At the commencement of the Hearing on May 30, 2023, Mr. Fleisher reaffirmed that a settlement of all the issues in dispute had been reached and thanked the Parties and Participants for effecting the settlement.
Chronology of the Current Application
13The Application was originally submitted to the COA in July 2022 (Original Application); that proposal and the variances required contemplated a Floor Space Index (FSI) of 0.6257 times the area of the lot, a building length of 23.16 metres, and a building depth of 23.45 metres, amongst other variances.
14The Application was further revised by the Applicant in September 2022 (Revised Application) and included a total of ten (10) variances, nine (9) from Zoning By-law 569-2013 and one (1) from the former Toronto Zoning By-law 438-86. T
15The Revised Application incorporated slightly reduced variances for FSI (0.6102x) and building length (22.56 m) and depth (22.56 m). That Application was the version considered by the COA and refused at the December 7, 2022, meeting.
16Of note, City Community Planning Staff prepared two reports to the COA following the Revised Application's circulation. In both Reports, the first dated September 15, 2022, and the second dated November 30, 2022, Staff recommended refusal of both the length and depth variances requested by the Applicant and recommended that the FSI variance be reduced to 0.58 x the lot area or less.
17Urban Forestry Staff also prepared a memorandum dated September 12, 2022, which noted no objection to the proposed variances.
18A total of fifteen (15) letters of opposition, and two (2) letters of support were submitted to the COA by neighbours of the subject property.
19Following the COA’s refusal of the Revised Application, the Applicant continued discussions with Community Planning Staff and the adjacent neighbours in the hopes of resolving the remaining outstanding concerns regarding the proposal.
20These discussions resulted in further revisions to the proposal and the settlement filed with the TLAB, which eliminated seven (7) of the ten (10) variances previously sought in the Revised Application that was refused by the COA, and served to resolve all remaining concerns of Community Planning staff.
21The discussions with the neighbours also resulted in further revisions to the proposal including the planting of an additional tree west of the outdoor room north of the existing greenery on the subject property, and frosted windows on the east elevation for privacy mitigation.
22Additionally, the proposal included a new pool cabana in the rear yard, which requires no variances to construct. However, the cabana has been removed from the Current Application and a notation has been added to the plans that it will not be located within the tree protection zone of a mature tree located at 39 Rochester.
23Finally, on November 30, 2022, the Ontario Land Tribunal issued an Order as it relates to the outstanding appeals to Zoning By-law 569-2013 bringing certain portions of the By-law into effect, including those provisions related to building height and exterior main wall height.
24As a result, variances previously sought by the Applicant for building height and exterior main wall height are no longer required
25The table[1] below outlines how the proposed application has evolved and the requested variances have been amended between the original submission and the Current Application. The remaining variances being requested are highlighted in grey
Evolution of the Requested Variances for 37 Rochester Ave.
26Consequently, the Applicant is requesting that the TLAB authorize the following variances in the Revised List of Requested Variances below:
27REVISED LIST OF REQUESTED VARIANCES
- Chapter 10.20.40.30.(1), By-law No. 569-2013
The permitted maximum building length for a detached house is 19.0 m.
The proposed building depth is 22.25 m.
- Chapter 10.20.40.20.(1), By-law No. 569-2013
In the RD zone with a minimum required lot frontage of 18.0 m or less, the permitted maximum building length for a detached house is 17.0 m.
The proposed building length is 22.25 m.
- Chapter 10.20.40.40.(1)(A), By-law No. 569-2013
The permitted maximum floor space index is 0.35 times the area of the lot,
The proposed floor space index is 0.578 times the area of the lot.
THE LEGISLATIVE AND POLICY FRAMEWORK
28Provincial Policy – S. 3
A decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2020 Provincial Policy Statement (PPS) and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (Growth Plan).
29Variance – 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
30are minor.
SUMMARY OF EVIDENCE
31A summary of evidence is presented here to provide some context for the following sections of this Decision and Order.
32The only evidence and testimony in this matter were provided by the Applicant’s expert planning witness, Ryan Guetter (Weston Consulting), who the TLAB qualified at the Hearing to provide professional opinion evidence in the area of land use planning.
33Given that this Hearing was converted to an expedited Settlement Hearing as permitted by Rule 19 of the TLAB’s Rules, the evidence and testimony provided at the Hearing have been abbreviated; however, all the materials filed 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.
34The following people attended the virtual Hearing on May 30th: the Appellant, Maksims Volkovs, Mr. Fleisher, and Mr. Guetter. In addition, Adam Ward and Lauren Pinder, representing the City of Toronto, and Party Christine Montgomery were present.
35I advised those present at the Hearing that I had attended at the site and the surrounding area and had familiarized myself with all of the pre-filed materials in preparation for the hearing of the evidence.
36A summary of Mr. Guetter’s evidence is presented here to provide some context for the following sections in this Decision and Order.
37Mr. Guetter identified a study area to assess neighbourhood character in accordance with the direction of the OP.
38He described the geographic neighbourhood (Study Area) as follows:
There are a variety of original houses, altered dwellings, and many new houses with varied architectural styles.
The neighbourhood has a consistent pattern of the general interspersion of newer replacement dwellings, which are generally larger in scale, amongst the original housing stock.
The majority of dwellings within the Study Area are generally characterized by large massing and scale, whether original, altered, or new.
In addition to the massing and scale of the area, the neighbourhood is also characterized by relatively consistent lot widths and lot sizes.
There is slightly different zoning within the Study Area; on the west side, where the subject property is located, the minimum lot frontage is 15 metres, the maximum density is 0.35 times the area of the lot, and there is no maximum lot coverage. On the east side, the minimum frontage is 18 metres, the maximum lot coverage is 35%, and there is no maximum density.
Many properties within the geographic neighbourhood have amenities, buildings, and/or structures in their rear yards, primarily in the form of pools and associated decks and patios.
ISSUES AND ANALYSIS
39I accept Mr. Guetter’s evidence that the revised proposal is consistent with the 2020 Provincial Policy Statement and conforms to the Growth Plan for the Greater Golden Horseshoe.
OFFICIAL PLAN
40Mr. Guetter provided an analysis of applicable Official Plan policies. He considered Sections 2.3.1, 3.2.1, and 3.4.1(d) which were pertinent to the analysis of the variances requested.
41With respect to OP Policy 3.4.1(d), that policy speaks to preserving and enhancing the urban forest and canopy and lists three (3) categories for consideration including providing suitable growing environments for trees, increasing tree canopy coverage and density, and regulating the injury and destruction of trees.
42Mr. Guetter noted that the proposed development requires permissions to injure a City-owned and a privately-owned tree at the rear of the subject property, as well as two (2) privately-owned trees located on the neighbouring property at 39 Rochester Avenue.
43He confirmed that as a result of an arborist’s Report submitted to the City by the Applicant, the proposal has been revised and carefully designed to avoid the tree protection zones of the by-law protected trees to mitigate any injury to these trees This included a 4.1 m east side yard setback for a portion of the east side wall (figure 1, below).
Figure 1. Proposed East Side Yard Setback of 4.1 Metres (37 Rochester Ave.)
44As a result, Urban Forestry Staff have no further objection to the revised proposal in this regard and recommended standard conditions if the Application is approved; these conditions are found in APPENDIX B in this Decision and Order.
45In addressing the relevant policies in the OP., Mr. Gutter acknowledged that the Policies under Section 4.1.5 (Development Criteria in Neighbourhoods) were of the most importance, containing development criteria that are intended to give greater specificity regarding the expectations for development in Neighbourhoods.
46The policies in 4.1.5 direct that development will respect and reinforce the existing physical character of each geographic neighbourhood including a list of characteristics found in sub-paragraphs a) through i).
47Of the criteria set out in the Policy, I consider a), b), c) and d) to warrant further discussions concerning the variances requested for building depth and length and Floor Space Index (FSI).
a) Prevailing heights, massing, scale, density and dwelling types of nearby residential properties
b) Prevailing location, design and elevations relative to the grade of driveways and garages
c) Prevailing setbacks of buildings from the street or streets
d) Prevailing patterns of rear and side yard setbacks and landscaped open space
48Mr. Guetter submitted a Photo Study and a COA Decision Table (found in Exhibit 1) with previous Committee of Adjustment decisions within the Study Area that reflect recent approvals similar to what the Applicant is requesting.
49He opined that this data demonstrate that recent Committee approvals (109 out of 115 or 90 %)[2] within the Study Area included approvals for increases in density, length and/or depth, demonstrating that the prevailing character of redevelopment within the geographic neighbourhood reflects larger-scale dwellings with increased density and building length and depth.
Of these recent approvals, Mr. Guetter highlighted numerous examples of homes with approved FSI, length and depth variances that are comparable or greater to what the Applicant is seeking, including the following:
8 St. Ibes Cres (FSI 0.637x); 27 Wanless Cres. (FSI 0.6325x);
101 Buckingham Ave. (FSI 0.63x, length 18.13 m);
43 Wanless Cres. (FSI 0.6x);
34 Rochester Ave. (FSI 0.5995x, length 20.4 m, depth 20.4 m);
118 Cheltenham Ave. (length 22.11 m, depth 22.11 m);
135 St. Leonard Ave. (FSI 0.5952x, length 21.9 m, depth 21.9 m); and
186 Dawlish Ave. (FSI 0.57x, length 21.65 m, depth 21.65 m).
50These COA approvals, he asserted, demonstrate that the Current Application will contribute to the trend of recently approved dwelling sizes and scales in the geographic neighbourhood.
51In describing the revised proposal, he submitted that the proposed dwelling incorporates a new integrated, single-car garage accessed by a driveway in the front yard in generally the same location as the existing attached garage and driveway, a predominant feature within both the immediate and geographic neighbourhood.
52Additionally, the proposed dwelling is sited such that the front main wall is generally in line with the front main walls of the adjacent dwellings on either side, maintaining a regular and consistent pattern of front yard setbacks from Rochester Avenue.
53Although the side yard setback conditions of the existing dwelling do not conform to the Zoning By-law, the proposed dwelling improves the side yard setbacks that currently exist bringing them into conformity and a side yard setback condition similar to its abutting neighbours.
54This, Mr. Guetter, opined, will maintain an appropriate streetscape pattern with appropriate distance between dwellings in keeping with the prevailing physical character of the immediate area.
55The Applicant has also designed the proposal by maintaining the existing pattern of front yard setbacks and shifting the proposed dwelling slightly to the west on the subject property.
56In doing so, the Applicant has increased the side yard setback between the extended one-storey portion on the east side of the dwelling, which exceeds the permitted building length and depth, thereby maintaining sufficient separation distance and privacy to the adjacent property to the east.
57In turn, this has allowed the Applicant to maintain the existing tree in the front yard as well as the other remaining trees and has mitigated impacts on the row of cedars along the western property line and the hedge along the eastern property which contribute to tree cover and privacy.
58Mr. Guetter asserted that the geographic neighbourhood does contain a significant number of dwellings with larger densities, massing and scale and Policy 4.1.5 specifically notes that the direction to respect and reinforce will not “preclude development whose physical characteristics are not the most frequently occurring but do exist in substantial numbers within the geographic neighbourhood.”
59In this regard, and based on the record of previous COA approvals submitted by Mr. Guetter and the photographic evidence provided, I am satisfied that the proposed dwelling is materially consistent with the physical character of the geographic neighbourhood, which already includes comparable densities, building lengths, depths, and setbacks above the Zoning By-law requirements, including those greater than what is currently proposed.
60Therefore, I find that the revised proposal maintains the general intent and purpose of the Official Plan.
ZONING BY-LAW
61Mr. Guetter’s evidence was that the general intent and purpose of the Zoning By-law is to regulate the use and physical characteristics of a building on a site to ensure appropriate, compatible built form with surrounding properties.
62The intent of the building length and depth performance standards is to ensure that the length of a building is generally consistent between dwellings throughout the neighbourhood and to control the overall massing and built form of a building as it relates to adjacent dwellings.
63The building depth and length variances being requested by the Applicant (Variances 1 and 2, respectively) are associated only with the one-storey section of the proposed dwelling that exceeds beyond the rear of the rest of the home. Without the one-storey section, the proposed dwelling, including the second storey, would be zoning compliant (being at a depth and length of 16.9 m).
64Beyond the distance of 16.9 m, the proposed dwelling is stepped back at the rear to the one-storey section which is centralized along the rear wall, comprises only 5.47 metres (or approximately 47%) of the total dwelling width (Figure 2 below), and is set back 6.5 m from the western lot line.
65The one-storey section at the rear is also set back further than the front portion of the dwelling from the eastern lot line at 2.78 metres.
Figure 2. One-storey Rear Addition
66The result is that both side yard setbacks to the one-storey section exceed the minimum side yard setback requirements in the Zoning By-law.
67Given that the increased building length and depth are associated only with the one-storey section to the rear that comprises less than half the total width of the proposed dwelling, and the Applicant proposes to increase the side yard setbacks to this section of the dwelling, I am satisfied that proposed variances will achieve an appropriate building massing and maintain a compatible relationship with the adjacent dwellings.
68The intent of a maximum permitted FSI is in large part to regulate the amount of gross floor area (GFA) which can be built on a property. The FSI is generally used as a numerical indicator of ‘density’ and whether the amount of building/floor space on a lot constitutes ‘overdevelopment’ within the context, along with other performance standards such as overall building height, length, depth, and setbacks.
69The Applicant has attempted to minimize the massing and built form at the rear of the proposed dwelling by stepping down the one-storey section of the structure that exceeds the permitted maximum building length and depth provisions.
70In addition, the Applicant has revised the proposal by reducing the FSI variance from 0.612 times the area of the lot that was considered by the COA to 0.578 x in the current Application before the TLAB.
71This reduction in FSI is in keeping with the comments to the COA from the City Community Planning Staff in their report dated December 7, 2022, regarding the Application, in which they recommended an FSI of 0.58 times or less as being “…more in keeping with the densities that have been approved by the Committee of Adjustment in the Lawrence Park Neighbourhood.”[3]
72I agree with Mr. Guetter that the character of the geographic neighbourhood is defined by a pattern of dwellings, both recently constructed and older dwellings, with varying massing and scale, including several large residential dwellings relative to their lot size.
73I also agree that the requested variance is similar and within the range of other FSI variance approvals within the area representing both comparable and greater densities than what is being proposed. These include thirteen (13) decisions within the Study Area that authorized an FSI of 0.578 x or greater.[4]
74Therefore, I am satisfied that the increased density proposed by the Applicant can be achieved on the subject property without inappropriate massing or built form, in keeping with the character of the neighbourhood.
75I find that the variances for building length and depth, and FSI maintain the general intent and purpose of the Zoning By-law.
MINOR AND DESIRABLE FOR THE DEVELOPMENT OF THE LAND
76I am satisfied that the proposed dwelling is appropriately sized and that despite the proposed increase in density, building length and depth, the dwelling generally maintains suitable yard setbacks in keeping with the pattern of side yard setbacks within the geographic neighbourhood.
77I am also satisfied that the proposed dwelling will result in gradual and sensitive change that will not significantly alter the pattern of built form in both the immediate and broader contexts.
78I find that there are no undue adverse impacts of a planning nature from the revised proposal given that it has been sensitively designed to minimize impact on existing trees and to maintain existing landscaping features on and adjacent to the subject property.
79Much of the existing vegetation is proposed to remain, which will provide screening to reduce any potential impacts from both the street and adjacent properties.
80Additionally, in response to comments from the owners of the abutting property at 39 Rochester, the second storey east-facing windows will incorporate frosted glass to further mitigate any privacy concerns.
81Therefore, based on the above findings, I find the proposal to be minor and desirable for the development of the land.
CONCLUSION
82This is an Appeal that has been settled between the Parties. I find that the revised proposal is not contrary to the Planning Act and is within the range of reasonable outcomes.
83The revisions to the proposal that is before the TLAB reflect changes made as a result of discussions and the settlement reached between the Parties and I find them to be minor, pursuant to s. 45(18.1.) of the Act, and represent a reduction to the number of variances and their magnitude.
84I also find that the requested variances, individually and cumulatively, satisfy all four tests as required in s. 45(1) of the Planning Act and represent good planning and I authorize the revised list of variances subject to the conditions included herein.
DECISION AND ORDER
85The Appeal is allowed in part. The variances listed in APPENDIX A are authorized, subject to the conditions contained in APPENDIX B therein.
D. Lombardi
Panel Member
APPENDIX A
Revised List of Variances
- Chapter 10.20.40.30.(1), By-law No. 569-2013
The permitted maximum building length for a detached house is 19.0 m.
The proposed building depth is 22.25 m.
- Chapter 10.20.40.20.(1), By-law No. 569-2013
In the RD zone with a minimum required lot frontage of 18.0 m or less, the permitted maximum building length for a detached house is 17.0 m.
The proposed building length is 22.25 m.
- Chapter 10.20.40.40.(1)(A), By-law No. 569-2013
The permitted maximum floor space index is 0.35 times the area of the lot,
The proposed floor space index is 0.578 times the area of the lot.
APPENDIX B
Conditions of Approval
The dwelling shall be constructed substantially in accordance with the following Site Plan and Elevations drawings (Architectural Plans) dated April 18, 2023, prepared by Richard Wengle Architect Inc., and attached as APPENDIX C herein: Site Plan; Front Elevation; Rear Elevation; East Elevation; and West Elevation. Any other variance(s) that may appear as required on these plans but are not listed in this written decision are NOT authorized.
The windows on the second storey of the east elevation shall be constructed using frosted glass and substantially in accordance with the East Elevation of the Architectural Plans;
No cabana (nor any servicing related thereto) shall be constructed within the tree protection zone of the existing tree located at the southwest corner of 39 Rochester Avenue, as noted on the Site Plan;
The Applicant shall submit a complete application for a permit to injure or remove a City-owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees on City Streets; and
The Applicant shall submit a complete application for a permit to injure or remove a privately-owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.
APPENDIX C
Site Plan and Elevation Drawings
1Exhibit 3 – Mr. Guetter’s Expert Witness Statement, dated April 18, 202, p. 7.
2Exhibit 3 – Mr. Guetter’s Expert Witness Statement, para. 60 (A)(vi), p. 12.
3Exhibit 3 – Mr. Guetter’s Expert Witness Statement, para. 76, p. 17.
4Ibid., para. 78, p. 18.