Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
2023-07-19
23 111902 S45 18 TLAB
Toronto (City) v. Wong, 2023 ONTLAB 113
DECISION AND ORDER
Issuance Date:
July 19, 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):
STONES THROW DESIGN INC
Property Address:
139 POYNTZ AVE
COA File No.:
22 225370 NNY 18 MV (A0714/22NY)
TLAB Case File No.:
23 111902 S45 18 TLAB
Hearing Date(s):
Wednesday, July 12, 2023
Decision Delivered By:
TLAB Chair D. Lombardi
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Owner
B. Hew
Applicant
Stones Throw Design Inc.
Appellant
City of Toronto
C. Dougherty
Party
T. Wong
Expert Witness
D.Steinberg (City of Toronto)
INTRODUCTION AND CONTEXT
1This Hearing arises from an Appeal by Colin Dougherty, Solicitor, on behalf of the City of Toronto (City), of the decision of the City’s Committee of Adjustment (COA) to approve variances, with a condition, for the property known as 139 Poyntz Avenue (subject property).
2The purpose of the application is to permit the Applicant to construct a new second storey addition over the existing foundation, plus a garage and a one-storey addition.
3The subject property is designated ‘Neighbourhoods’ in the Official Plan (OP) and zoned RD (f12.0; a370) under the City’s harmonized Zoning By-law 569-2013. It is located on the south side of Poyntz Avenue, southwest of Yonge Street and Sheppard Avenue West, within the Community of West Lansing.
4The City of Toronto appealed the COA’s decision to the Toronto Local Appeal Body (TLAB) on February 8, 2023, and the TLAB issued a Notice of Hearing (NOH), Form 2, setting a Hearing date for August 9, 2023.
5The NOH established, among other due dates for documents, a deadline of June 5, 2023, to file a Notice of Intention to be either a Party or a Participant.
Prologue
6On May 4, 2023, before the scheduled Hearing, the City advised the TLAB by email that the Applicant and the Appellant (City) had resolved the matter based on the plans before the COA.
7Given that the matter had been settled and the Application was unopposed at the COA, the City requested that the TLAB schedule an expedited settlement Hearing before the June 5th deadline for electing Party or Participant status.
8In response, the TLAB advised the City and the Applicant that the Tribunal’s Rules of Practice and Procedure (Rules) contain specific Rules relating to the election of Party (Rule 12) or Participant (Rule 13) status, and that consideration of an expedited Settlement Hearing would not be considered before that date.
9The TLAB, however, did advise the Appellant that it would consider an expedited Hearing date once the June 5th filing date had passed if no other individuals, other than the Owner/Applicant and the City, filed requests for the election of status in the Appeal.
10On June 6, 2023, Mr. Dougherty, advised the TLAB by email that the City and the Applicant were jointly requesting an expedited Settlement Hearing given that the deadline to seek Party and/or Participant status had passed with no further requests received by the Tribunal.
Prehearing Conferenced Scheduled
11As of June 8th, the Applicant had filed no evidence with the TLAB in support of the proposal and variances requested. The only documents related to the subject Application on the TLAB’s AIC website were those filed before the COA including a Site Plan without any elevation drawings illustrating the proposed new first and second-storey additions and garage to be constructed on the subject property.
12Furthermore, Mr. Dougherty proposed that the City, instead of the Applicant, would be leading expert planning testimony at the Settlement Hearing to assist the Owners in putting forth the arguments as to why the Application satisfies the legislative tests outlined in s. 45(1) of the Planning Act.
13He noted that the Owners’ architect, Ms. Terrell Wong, would augment the evidence by providing context for the sustainable construction methods to be employed by the Owners in constructing the proposed dwelling, which forms the basis upon which the settlement between the Parties was reached.
14In light of the City’s request and the rather unorthodox approach of the City proposing to lead expert evidence in the matter, I directed TLAB staff to schedule a Prehearing Conference (PHC), as permitted by Rule 21 in the TLAB’s Rules, for June 12, 2023.
15The purpose of convening the PHC was to obtain further understanding of the parameters of the settlement, obtain admissions that might simplify the anticipated Settlement Hearing, and provide direction to the Parties regarding the City’s request to reschedule the August 9th Hearing.
16In attendance at the PHC were the owners of the subject property, Ben Hew and Jacqueline Leung, their agent and architect, Terrell Wong, and solicitors Colin Dougherty and Yasmeen Peer, representing the City.
17Following discussions necessary to clarify procedural matters, and on the basis that the request from the City to reschedule the August 9th Appeal Hearing to an earlier expedited Settlement Hearing was on consent and the election of status date had passed, I agreed to the City’s request.
18Consequently, I issued an Order on June 15, 2023, directing TLAB staff to cancel the Appeal Hearing and to issue a new Notice for a Settlement Hearing on July 12, 2023.
19Included in the Order were adjusted filing due dates for Document Disclosure, the submission of Witness Statements as well as Responses and Replies to Responses to Witness Statements, reflective of the revised Hearing date of July 12th.
Application Chronology
20The Applicant proposes to construct a new second-storey addition, a new attached garage and a new one-storey rear addition. To permit this work, the Applicant sought and received COA approval for the following two (2) variances:
- Chapter 10.20.30.40.(1)(A), By-law No. 569-2013
The permitted maximum lot coverage is 30% of the lot area.
The proposed lot coverage is 34.3% of the lot area.
- Chapter 10.5.40.70.(1), By-law 569-2013
The required minimum front yard setback is 6.14 m.
The proposed front yard setback is 6.11 m.
21On the circulation of the application, Community Planning issued a Staff Report (Report) to the COA dated January 12, 2023. Staff’s review concluded that the proposed lot coverage failed to meet the four statutory tests for a variance, as prescribed under Section 45(1) of the Planning Act (Act), and that the lot coverage variance did not maintain the general intent and purpose of the Official Plan.
22The Report recommends that if the Committee chose to approve the application, the proposed lot coverage of 34.3% should be modified to 32% of the lot area.
23Since filing an appeal of the COA’s decision to approve the application, the City has continued discussions with the Owners of the subject property to better understand the source of the proposed lot coverage.
24These ongoing discussions form the basis for the settlement that was achieved between the City and the Applicant regarding the proposal before the TLAB, given the Owners’ intent to employ the principles of ‘Passive House Design’ in constructing the proposed dwelling.
THE LEGISLATIVE AND POLICY FRAMEWORK
25Provincial 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 (Growth Plan) for the subject area.
26Variance – 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.
SUMMARY OF EVIDENCE
27A summary of evidence is presented here to provide some context for the following sections of this Decision and Order.
28The only evidence and testimony in this matter were provided by the City’s planning witness, Diana Steinberg, a City planner, and Terrell Wong, the Applicant and Owners’ agent, and Principle in the architectural firm of Stones Throw Design Inc.
29Ms. Steinberg’s testimony and evidence were primarily focused on the four statutory tests in the Planning Act whereas Ms. Wong’s testimony and evidence were in the area of architecture and ‘Passive House Design’, an internationally recognized standard for energy efficient architecture.
30Given that this Hearing was converted into 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.
The Proposal
31I first heard from the Applicant, Ms. Wong, who provided an overview of the proposal before the TLAB and the utilization of the principles of ‘Passive House Design’ in the proposed dwelling.
32Community Planning issued a Staff Report dated January 12, 2023, in which Staff highlighted a concern with the proposed lot coverage noting that it was due, in part, to the proposed garage and one-storey rear addition.
33As a result, Staff concluded that 32% lot coverage was more consistent with the character of the neighbourhood and recommended that the proposed lot coverage variance be reduced to reflect this percentage.1
34Following the decision of the COA and the subsequent appeal by the City of that decision, the Owners of the subject property engaged with City Staff in further discussions to better understand the source of the lot coverage.
35As part of those discussions, the Owners of the subject property informed the City that the source of the proposed lot coverage variance of 34.3% was due, in part, to their intent to apply the principles of ‘Passive House Design’ to the construction of the rear addition and the new integral garage.
The Principles of Passive House Design
36Ms. Wong explained that Passive House Design (Exhibit 4) is an internationally recognized standard for energy efficient architecture which uses significantly less energy than conventional buildings by using high levels of external insulation and tightly sealing the building envelope.2
37In doing so, buildings designed with ‘Passive House’ principles require very little energy input to achieve comfortable indoor conditions all year.
38In using this ‘green passive insulation method’, external insulation is applied to the external masonry walls of a structure which increases energy efficiency but also increases wall thickness.
39Referring to the Site Plan and Elevation drawings (Exhibit 1), she clarified that the Owners are choosing to keep the existing walls of the home, which are “double wythe brick walls 8” thick.” However, in utilizing the principles of the Passive House Design, the contractor will be applying external fibre insulation will add 6” to the existing walls resulting in a finished wall thickness of 20”.
40Ms. Wong confirmed that if the Owners did not apply this external insulation to the existing walls, the lot coverage would be 32.3% which, although greater than the maximum lot coverage permitted in the Zoning By-law, would be 2% less than the variance being sought and more consistent with the majority of new dwellings in the immediate neighbourhood.
41I then heard from the City’s expert planning witness, Diane Steinberg, whom I qualified to provide expert opinion evidence in the area of land use planning.
42The City led the expert planning evidence by way of Ms. Steinberg, in support of the Application as had been noted by Mr. Dougherty.
43Ms. Steinberg identified a neighbourhood study area in accordance with the direction of the Official Plan, noting the boundaries as being Yonge Street to the east, Gwendolen Crescent to the west, Gwendolen Avenue to the south and Burnett Avenue to the north.
44She reviewed previous COA decisions within the study area to assess neighbourhood character by undertaking a review of building footprints of new and recently constructed dwellings in the area surrounding the subject property, focusing specifically on lot coverage.
45She did so to gain an understanding of the prevailing massing and scale of new development in the neighbourhood in order to determine whether the proposal would ‘fit’ with the existing area character.
46In undertaking this review, Ms. Steinberg concluded that the “overwhelming majority of lot coverage approvals for new dwellings and additions did not exceed 32%” in the neighbourhood.3
47She also noted that if the COA had approved lot coverages above 32%, the square footage used in the calculation would likely have included the footprint of an ancillary structure such as a rear yard cabana, detached garage, or a rear deck with an excavated basement below.
48This, she confirmed, was the basis for Community Planning Staff’s conclusion in their January 19th Report that the proposed lot coverage variance of 34.3% was not consistent with the massing and scale of dwellings and did not respect and reinforce the existing physical character of the neighbourhood.
49However, after learning of the ‘green’ design principles that the Owners intend to employ in constructing the proposed dwelling on the subject property and the fact that an additional 2% of lot coverage was due, in part, to the application of these design aspects of the proposal, the City’s position with respect to this Application changed.
50She corroborated that Community Planning Staff is now in support of the Application and the variances being requested and this is the basis of the settlement reached.
ISSUES AND ANALYSIS
51I accept Ms. Steinberg’s evidence that the proposal is consistent with the 2020 Provincial Policy Statement and conforms to the Growth Plan for the Greater Golden Horseshoe.
52Both the Provincial Policy Statement and the Growth Plan have policies that emphasize the importance of long-term sustainability in new development and promote efforts to conserve energy through green infrastructure initiatives.
53They also contain policies that promote moving to reduce energy consumption for both existing and planned development.
54I also find that the Application has regard for matters of provincial interest as they are set out in Section 2 of the Planning Act.
OFFICIAL PLAN
55Ms. Steinberg provided an analysis of applicable Official Plan policy. She first highlighted those policies in Chapters 2 and 3 which support and encourage environmental sustainability and the use of energy efficient building design to achieve lower levels of energy consumption.
56More specifically, she highlighted the preamble to Chapter 3.1 states that “This Plan demands that both public and private sectors commit to high quality architecture, landscape architecture and urban design, environmentally sustainable design, consistent with energy standards.”4
57Additionally, Section 3.4 – The Natural Environment - of the Official Plan contains several policies which encourage the use of environmentally friendly building design when considering changes to the built environment.
58She submitted that although the external insulation to be used on the proposed dwelling will contribute to the building footprint and a slight increase to the permitted lot coverage, Community Planning Staff nevertheless find that the Application supports the policies in the Official Plan that promote environmentally friendly and innovative construction practices to reduce energy consumption.
59Ms. Steinberg then addressed Official Plan Policy 4.1.5 which contains within it development criteria that are intended to give greater specificity regarding the expectation for development in Neighbourhoods.
60Of the criteria set out in Policy 4.1.5, she considered Policy 4.1.5 c), below, to be the most relevant:
“Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:
c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties.”
61She also submitted that Policy 4.1.5 states that “The prevailing building type and physical character of a geographic neighbourhood will be determined by the most frequently occurring form of development in that neighbourhood.”
62The Official Plan recognizes the term “prevailing” as meaning most frequently occurring for the purpose of the Neighbourhoods policies.
63Ms. Steinberg asserted that to determine ‘the most frequently occurring’ lot coverage, she conducted a review of previous COA decisions from 2016 to August 2022, for properties in the area surrounding the subject property. where a variance for lot coverage was approved
64She confirmed that while the overwhelming majority of lot coverage approvals did not exceed 32%, the 34.3% lot coverage variance being sought by the Applicant was supportable.
65She opined that if not for the thickness of the external insulation, the lot coverage would be 32.3%, which is consistent with the new dwellings in the surrounding area and at the lot coverage maximum recommended by Community Planning Staff.
66She noted that Staff are of the opinion that although the proposed external insulation methodology will contribute, in part, to 2% of the proposed lot coverage, the application of the Passive House Design supports the objectives of the Official Plan as they relate to energy conservation and environmentally sustainable design.
67Ms. Steinberg also opined that the Application also requests a minor decrease in the front yard setback of 0.03 m (0.1 ft.). She confirmed that Staff are of the opinion that Variance No. 2 for the front yard setback satisfies the four tests for a variance under Section 45(1) of the Planning Act.
68I find that the proposal maintains the general intent and purpose of the Official Plan.
ZONING BY-LAW
69Ms. Steinberg’s evidence was that the general intent and purpose of regulating lot coverage in the Zoning By-law is to control the massing and scale of buildings to ensure there is consistent massing between dwellings and to ensure adequate landscaping is provided.
70She asserted that while proposing an extremely minor decrease in the front yard setback, the proposed dwelling maintains the minimum required side yard setbacks and no additional building height or length variances are being sought.
71Therefore, I am satisfied that the proposed lot coverage and front yard setback maintain the general intent and purpose of the Zoning By-law.
MINOR AND DESIRABLE FOR THE DEVELOPMENT OF THE LAND
72I find that there are no undue adverse impacts of a planning nature from the proposal. The proposed redevelopment of the subject property by way of the construction of a second storey addition over the existing foundation, along with a new garage and one-storey addition, aligns with the objectives of both provincial policy documents and the Official Plan to create sustainable, resilient and energy-efficient communities.
73I agree with Ms. Steinberg that the resulting massing of the proposed dwelling will be materially consistent with the prevailing character of properties in the neighbourhood, as required by the Neighbourhoods policies in the Official Plan.
74I also find that the proposed one-storey rear addition will not be visible from the perspective of the street and there will be no undue or adverse visual impacts along the streetscape or to adjacent properties.
75In addition, the Application does not request landscaping deficiencies to facilitate the marginally increased building footprint.
76On the basis of the above findings, I find the proposal to be minor and desirable for the appropriate development of the land.
CONCLUSION
77This is an Appeal that has been settled between the only two Parties in the matter. I find that the proposal is not contrary to the Planning Act and is within the range of reasonable outcomes.
78I find that the variances, individually and cumulatively, meet the tests of s. 45(1) of the Planning Act and represent good planning, and I authorize the variances requested, subject to the conditions included herein.
79Finally, s. 45(18.1.1) of the Planning Act allows the Tribunal to waive notice for a decision on an application that has been amended from the original application, on the condition that the amendment to the original application, in the Tribunal’s opinion, is minor.
80I note that the only revision to the original application is a note that has been included in the Site Plan (Drawing A1.1) which explains the exterior materials to be used by the Owners and acknowledges that the design of the proposed dwelling is based on the principles of Passive House Design.
81I find this note to be a minor revision to the drawings, beneficial to the public interest, and important to the Application before the TLAB. Therefore, I find no further notice is required.
82Finally, I would like to thank the City, the Applicant and the Owners for their cooperation in undertaking discussions that achieved a settlement in this appeal matter.
83Furthermore, the Owners of the subject property should be acknowledged for their decision to utilize energy efficient architecture and environmentally sustainable, green design to construct the proposed dwelling.
DECISION AND ORDER
84The Appeal is dismissed; the decision of the Committee of Adjustment dated January 19, 2023, is confirmed, in part, and the variances listed in Appendix A are authorized, subject to the conditions contained in Appendix B therein, and in accordance with the revised Plans depicted in Appendix C hereto.
D. Lombardi
Chair Panel Member
APPENDIX A
List of Variances
- Chapter 10.20.30.40.(1)(A), By-law No. 569-2013
The permitted maximum lot coverage is 30% of the lot area.
The proposed lot coverage is 34.3% of the lot area.
- Chapter 10.5.40.70.(1), By-law 569-2013
The required minimum front yard setback is 6.14 m.
The proposed front yard setback is 6.11 m.
APPENDIX B
Conditions of Approval
The dwelling shall be constructed substantially in accordance with the following Site Plan and elevation drawings dated July 13, 2023, prepared by Stones Throw Design Inc., and attached as APPENDIX C herein: Drawing A1.1 – Site Plan; Drawing A3.1 East Elevation and West Elevation; and Drawing A3.2 – North Elevation and South Elevation. Any other variance or variances that may appear as required on these plans but that are not listed in this written decision are NOT authorized.
The proposed dwelling shall be constructed using an eco-friendly insulation method which encapsulates the original brick dwelling, re-using the original brick structure. The proposed dwelling shall be constructed using the sustainable materials noted on the Site Plan drawing, or a comparable material, so long as a change in sustainable material does not result in greater lot coverage.
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.
APPENDIX C
Site Plan Drawings