Esmail (Re), 2023 ONTLAB 115

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date:

2023-07-24

23 100971 S45 16 TLAB

Esmail (Re), 2023 ONTLAB 115

Issuance Date:

July 24, 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):

Applicant(s):

Property Address:

54 HURLINGHAM CRES

COA File No.:

22 217973 NNY 16 MV

TLAB Case File No.:

23 100971 S45 06 TLAB

Hearing Date(s):

June 28, 2023

Decision Delivered By:

TLAB Panel Member B. Marin

People Type

First Initial. Last Name

Representative

Applicant

Appellant

Expert Witness

INTRODUCTION AND CONTEXT

1This was a hearing of an appeal by Adil Esmail (“Appellant”) from a decision of the Committee of Adjustment for the City of Toronto to refuse minor variances from Zoning By-law 569-2013 for the property at 54 Hurlingham Crescent.

2The variances requested were:

Chapter 10.5.50.10 (1)(C) – a lot with a frontage of 15m or greater must provide 60% of the front yard as landscaping, whereas the proposed front yard landscaping is 47%.

Chapter 10.5.100.1(6) – a lot may have a driveway with two points of access to the same street if the lot has a frontage greater than 18m and complies with the front yard landscaping requirements found in clause 10.5.50.10, whereas the proposed front yard landscaping does not comply with Chapter 10.5.50.10 (1)(C).

3The Appellant was represented by lawyer M. John Ewart of Ewart O’Dwyer.

4Mr. Ewart called Mr. Kent Randall from Ecovue Consulting Services who was qualified during the hearing to give expert evidence in land use planning.

5No parties or participants attended the meeting either in opposition or support of the requested variances.

6The minor variances requested will permit the construction of a circular driveway in the front yard of the property.

THE LEGISLATIVE AND POLICY FRAMEWORK

7Variance – 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 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

8Mr. Randall identified the geographic neighbourhood as all lands between Leslie Street and the General Employment area (between 200 and 250 metre distances) and lands south of Bond Street to a maximum distance of 250 metres from the General Employment area. More specifically, the geographic neighbourhood extended approximately 950 metres south and 325 metres north of the subject property.

9The property at 54 Hurlingham Crescent is designated Neighbourhoods in the City of Toronto Official Plan.

10The property is zoned RD (f15.0; a550) (x5).[ZAP].

11The property is rectangular in shape with an 18.3 m frontage, a 40.4 m depth and a lot area of 740 m2.

12The property currently consists of a 2-storey single detached dwelling that is setback 6.3m from the front property line.

13There is an existing double driveway on the property that provides two (2) side-by-side off-street parking spaces for the existing dwelling. The entrance to the

driveway narrows to approximately 4 metres at the street (the equivalent width of one (1) parking space) to avoid a city tree on the property.

14The City of Toronto does not want the tree destroyed meaning the current driveway and its location limits the ability to maneuver and park vehicles on the property.

15The circular driveway proposed by the Appellant will accommodate additional parking, make it easier for vehicles to maneuver on the property and will protect the city owned tree.

16There are currently 8 properties in the geographic neighbourhood that have a circular drive like the drive proposed by the Appellant. Two of those properties are located within 65m of the property at 54 Hurlingham Crescent.

17Mr. Randall’s opinion was that the existing house on the property, along with the proposed circular driveway, would be consistent with the existing physical character of homes in the area and was a compatible fit with the mix of architectural styles and front yard amenities.

18Mr. Randall prepared a GIS and visual analysis of the existing 8 circular driveways. The analysis identified:

a) that the average driveway entrance size of the sample was 3.88 metres whereas the Appellant is proposing driveway widths of 3.4 metres and 3.5 metres.

b) only one of sixteen neighbourhood circular driveway entrances were less than those proposed on the site (this driveway had entrances sized 3.0 and 4.0 metres).

c) the average landscaped open space area for the sample was 33.9% whereas the Appellant is proposing 47%.

19Under examination by TLAB regarding the impact of the circular driveway on stormwater management, Mr. Randall stated that proposed driveway will be constructed using interlocking pavers which will reduce the stormwater runoff compared to hard surface materials such and asphalt and concrete. The increased stormwater generated by the driveway (0.136 cubic metres) can be contained on site using French drains or an on-site raingarden.

20Given the fact that there are existing circular driveways in the geographic neighbourhood which have existing performance standards that are more impactful than what is proposed, it was Mr. Randall’ s expert opinion in land use planning that the variances requested satisfied the four tests under s. 45(1) of the Act. Specifically, 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.
are minor.

General Intent and Purpose of the Official Plan.

21Mr. Randall advised TLAB that areas of the city designated Neighbourhoods are stable, but not static. The Official Plan therefore expects and allows new development in areas designated Neighbourhoods provided the new development respects the existing physical character of the area and reinforces the stability of the area.

General Intent and Purpose of the Zoning By-law.

22Mr. Randall advised TLAB that the general intent and purpose of the zoning by-law is to identify permitted uses, together with performance standards which, once applied to a building or property, will allow the types of land use, and built structures identified in the Official Plan.

23Mr. Randall was able to demonstrate that the new driveway as proposed was consistent with the existing physical character of properties in the area.

Are the variances desirable for the appropriate development or use of the land?

24Mr. Randall’s opinion is that the proposed circular driveway achieves two key neighbourhood objectives: it is an investment in the property which adds to the stability of the single detached home neighbourhood; and it preserves an existing city street tree.

Are the variances requested minor?

25Mr. Randall’s opinion was that the variances requested were numerically minor, and both individually and cumulatively, do not create any adverse impacts on adjacent properties or the neighbourhood.

ISSUES AND ANALYSIS

26The impacts of the proposed circular driveway on stormwater management and precedent were TLAB’s biggest concerns with the requested variances. Through his evidence, Mr. Randall was able to adequately address both concerns to the satisfaction of TLAB.

CONCLUSION

27A hearing of TLAB to consider an appeal by Adil Esmail was conducted on June 28, 2023. Opinion evidence from Mr. Kent Randall was presented during the hearing. After consideration of the opinion evidence, TLAB was satisfied that the four statutory tests for approval of a minor variance had been satisfied.

DECISION AND ORDER

28The Tribunal will allow the appeal. The requested variances are approved.

B. Martin

Panel Member