Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
2023-08-14
23 123925 S45 09 TLAB
Farrelly (Re), 2023 ONTLAB 121
DECISION AND ORDER
Issuance Date:
August 14, 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):
A. P. Farrelly
Applicant(s):
D. P. Kurfurst
Property Address:
1036 St. Clarens Ave.
COA File No.:
22 219522 STE 09 MV
A1174/22TEY
TLAB Case File No.:
23 123925 S45 09 TLAB
Hearing Date(s):
July 18, 2023
Decision Delivered By:
TLAB Chair D. Lombardi
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant/ Primary Owner
A. P. Farrelly
M. Mazierski,
D. P. Kurfurst
Applicant
D. P. Kurfurst
Owner
J. Kerr
INTRODUCTION AND CONTEXT
1This Hearing arises from an Appeal by Dennis Peter Kurfurst (Applicant), on behalf of Alan Patrick Farrelly (Owner), of the decision of the City of Toronto (City) Committee of Adjustment (COA) refusing variances for the property known as 1036 St. Clarens Avenue (subject property).
2The purpose of the application is to construct a rear two-storey ancillary building (garden suite) with an integral garage, and a front canopy.
3The subject property is located west of Lansdowne Avenue and north of Davenport Rd., on the east side of St. Clarens Avenue, mid-block, in the former City of Toronto.
4It is designated ‘Neighbourhoods’ in the City’s Official Plan (OP) and is subject to Official Plan Amendment (OPA) 554 which permits garden suites in Neighbourhoods.
5It is zoned R – Residential (d0.6)(x730) under the City Zoning By-law 569-2013 and is subject to City of Toronto Zoning By-law 101-2022 – Permitting Graden Suites.
6The subject property is presently occupied by a two-and-a-half-storey brick detached dwelling, with an existing frame garage situated in the rear yard along the southern portion of the property that the owners propose to demolish.
The Proposal and Application Chronology
7The Applicant is proposing to construct a new two-storey garden suite in the rear yard. The proposed ground floor will incorporate an interior parking space with the ground floor of the garden suite adjacent.
8The second floor will include two bedrooms, a kitchen as well as living space, and is proposed to cover an at-grade carport.
9The Applicant sought approval from the COA for five (5) variances in total from comprehensive Zoning By-law 569-2013; the Committee received a letter of objection from the neighbour on Lansdowne Avenue abutting the rear of the subject property as well as a petition signed by several other residents who primarily reside on Lansdowne Avenue in opposition to the Application.
10Neither the City’s Community Planning nor Urban Forestry Staff submitted a report to the COA regarding the proposal.
11On March 8, 2023, the COA refused the application, and the owner of the subject property appealed the decision to the Toronto Local Appeal Body (TLAB) which set a Hearing for July 18, 2023.
12Following the appeal to the TLAB and the retention of Mr. Jonathan Benczkowski, a land use planner, by the Owner, revisions were made to the proposal to address the concerns of the abutting neighbours on Lansdowne Avenue.
13Those concerns included the amount of soft landscaping and the permeable area proposed at the rear of the subject property, side yard setbacks, the overall massing and angular plane concerns related to zero-lot-line proximity to abutting properties, and overlook and privacy impacts of the proposed garden suite.
14As a result, the Applicant amended the proposal by repositioning the proposed garden suite and moving the building further from the rear property line thereby eliminating Variance #3 for an angular plane encroachment requested in the initial Application to the COA.
15Additional soft landscaping is now also being proposed in the amenity area at the rear of the garden suite, due to the shifting of the structure to the east, increasing the overall amount of landscaping in the rear yard.
16Furthermore, the Applicant is adding permeable pavers on the now-shorter driveway leading to the rear ground floor parking area of the garden suite.
17Therefore, the Owner is now seeking approval for a revised proposal and variances although the number and magnitude of the variances requested, cumulatively, have not changed significantly from the application before the COA.
18As a result of the amendments made to the proposal, the Applicant requests the following revised list of variances:
19REVISED LIST OF VARIANCES
- Chapter 150.7.50.10.(1)(A)(i), By-law No. 569-2013
A minimum of 50% (92.40 m2) of the rear yard must be maintained as soft landscaping.
In this case, 37% (69.09 m2) of the rear yard will be maintained as soft landscaping.
- Chapter 150.7.60.20.(5)(B), By-law No. 569-2013
The minimum required side yard setback for an ancillary building containing a garden suite is 0.76 m.
The ancillary building containing a garden suite will be located 0.2 m from the side (north) lot line and 0.07 m from the side (south) lot line.
- Chapter 150.7.60.30.(2)(A)(iii), By-law No. 569-2013
No part of an ancillary building containing a garden suite may penetrate a 45-degree angular plane projected towards the opposite lot line beginning from a height of 4 m from the required north and south side yard setback.
The ancillary building containing the garden suite will penetrate the 45-degree angular plane projected towards the opposite side lot line from the north side yard setback.
- Chapter 150.7.60.30.(2)(A)(iii), By-law No. 569-2013
No part of an ancillary building containing a garden suite may penetrate a 45-degree angular plane projected towards the opposite side lot line beginning from a height of 4 m from the required north and south side yard setback.
The ancillary building containing the garden suite will penetrate the 45-degree angular plane projected towards the opposite side lot line from the south side yard setback.
- Chapter 150.7.60.70(1)(B), By-law No. 569-2013
Despite regulations 10.5.60.70(1) and 10.10.60.70(1), if a lot has an ancillary building containing a garden suite, the lot coverage area may not exceed 20% (63.94 m2).
The ancillary building containing a garden suite will have a lot coverage area of 24% (78.18 m2).
- Chapter 150.7.60.70(1)(B), By-law No. 569-2013
Despite regulations 10.5.60.70(1) and 10.10.60.70(1), if a lot has an ancillary building containing a garden suite, the total floor area of the ancillary building containing a garden suite may not exceed 60.00 m2.
The proposed new two-storey garden suite will have a total floor area of 78.18 m2 [150.7.60.70(1)(C)(ii) Lot Coverage – Lot Coverage Requirement for a Lot with a Garden Suite].
THE LEGISLATIVE AND POLICY FRAMEWORK
20Provincial 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.
21Variance – 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
22Only the Owner’s representatives, Martin Mazierski (solicitor) and Jonathan Benczkowski, were in attendance at the July 18th Hearing; I heard from Mr. Benczkowski in support of the proposal.
23Mr. Benczkowski identified a study area in accordance with the direction of the Official Plan (OP).
24He identified boundaries for both a broader and immediate context; his Broader Context included the residential properties that back onto St. Clair Avenue West to the north, residential properties that back onto Davenport Road to the south, Lansdowne Avenue to the west, and the residential properties that back onto Dufferin Street to the east.
25He described the geographic neighbourhood as follows:
The subject property is located within an area with various architectural styles and built forms; the built form of individual dwellings is based on the period of construction although the predominant built form is a mixture of semi-detached and detached residential dwellings.
The study area primarily offers laneway parking to the rear; there are very few streets that do not have laneway access to the rear.
However, in the Immediate Context, along the stretch of St. Clarens Avenue, dwellings located within the middle of the block, including the subject property, do not have access to the rear lane and rear yard parking.
Therefore, those dwellings have a different built form and site layout which creates a massing that is more compact than those with rear lane access.
Those properties often have a driveway adjacent to the dwelling that provides parking in the side/rear yard or an integral garage.
In addition, all properties within the study area permit a building height of 11.0 m.
The proposal for a garden suite on the subject property represents the first such dwelling in the study area neighbourhood.
ISSUES AND ANALYSIS
26I accept Mr. Benczkowski’s evidence that the proposal is consistent with the 2020 Provincial Policy Statement and conforms to the Growth Plan as it will allow for the regeneration of, and increase in the housing stock in the neighbourhood, providing for a more efficient use of the land.
OFFICIAL PLAN
27Mr. Benczkowski provided an analysis of applicable Official Plan policy highlighting, first, Official Plan Amendment (OPA) 554 which was enacted by Council on February 3, 2022, and which permits garden suites in the Neighbourhoods designation.
28He noted that OPA 554 contains within it specific garden suite policies found under section b) in the OPA and enumerated as criteria i – ix that are intended to give greater specificity regarding the expectations for the development of garden suites in Neighbourhoods.
29Of those criteria, I consider the following to warrant further discussion in relation to the development of a garden suite on the subject property and the variances requested:
ii. will limit privacy and overlook issues on adjacent properties;
iii. will maintain the majority of the rear yard as open space, and maximize contiguous soft landscaping that is supportive of tree planting;
iv. the location, massing, and design of a Garden Suite should not result in the injury or removal of a healthy tree protected under Municipal Code Chapters 608, 658, and 813 on the subject property and adjacent properties;
vii. will ensure that the interior floor area of the Graden Suite is less than the gross floor area of the residential building on the lot;
viii. will ensure that stormwater management is maintained on the site; and,
ix. is encouraged to expand the urban tree canopy through the planting of a new tree on a lot with a Garden Suite.
30Mr. Benczkowski opined that the revised garden suite proposal addresses the criteria cited above, and I agree with Mr. Benczkowski that the proposed variances maintain the general intent and purpose of OPA 554 and appropriately address the criteria for development in Neighbourhoods.
31He then addressed the policies found in Chapters 2, 3 and 4 of the Official Plan with respect to the variances requested. He noted that the OP recognizes that neighbourhoods would experience physical change over time and that the intent of the OP is to ensure that new development does not propose changes that are out of keeping with the existing physical character of other developments within the area.
32The Healthy Neighbourhoods Policy in 2.3.1 (1) directs that “…Development in Neighbourhoods…will respect and reinforce the existing physical character of buildings, streetscapes and open space patterns in these areas."
33Mr. Benczkowski opined that changes to the OP permit a garden suite on the subject property and that as incremental development occurs over time, garden suites will contribute to that neighbourhood character.
34Built Form Policies 3.1.2 (1) and (5) directs that development will be located and organized to fit within its existing and planned context.
35Mr. Benczkowski noted that the proposed development will be the first garden suite in his neighbourhood study area and that it is not possible to conform to all the policies to respect and reinforce the neighbourhood. However, he asserted that being the so-called “first to the party”1 should not prohibit a property owner from developing such a structure that is permitted under the Zoning By-law.
36Furthermore, he opined that in this regard, OP Policy 4.1 (8) recognizes that the Zoning By-law standards are intended to ensure the compatibility of new development with the existing physical character of the established neighbourhood. He opined that the proposal’s substantial compliance with the Zoning By-law is an indication of compatibility with the existing neighbourhood.
37On the basis of the record submitted by Mr. Benczkowski and the photographic evidence provided, I am satisfied that the massing and size of the proposed garden suite and the side yard setbacks respect the prevailing physical character of the neighbourhood and the Immediate Context.
38I find the proposal maintains the general intent and purpose of the Official Plan.
ZONING BY-LAW
39Mr. Benczkowski’s evidence was that the general intent and purpose of zoning by-laws are to ensure compatible built form within a neighbourhood and to ensure that new development does not cause unacceptable undue adverse impacts of a planning nature.
40He opined that the proposal maintains this intent and does not introduce an inappropriate or unacceptable building form.
41The placement of the proposed garden suite in relation to adjacent structures within the subject block is in keeping with the existing context and the siting of the garden suite and surroundings are similar to that of a laneway suite.
42The general intent and purpose of the landscaping provision in the rear yard is to ensure that there is sufficient area for amenity pace as well as permeability of surface water runoff.
43Mr. Benczkowski submitted that the revised proposal will include soft landscaping in the front (east) and rear (west) of the garden suite and that by shifting the garden suite further east the Applicant has increased the rear yard setback as well as eliminated the angular plane requirement at the front elevation.
44The siting of the proposed structure will also now create two distinct amenity spaces, one at the rear of the garden suite and one at the rear of the existing, principal residential dwelling on the subject property. As a result, the overall sodded area proposed has also increased to 69.09 m2.
45The requirement for soft landscaping variance is being driven principally by the proposed driveway which leads to the ground floor carport for the garden suite. However, the size of this driveway has now been decreased as a result of the increase in the rear yard setback and it is to consist of permeable pavers to allow, along with the sodded areas, sufficient water infiltration on the site.
46The general intent and purpose of the side yard setback provision for garden suites is to ensure privacy to adjacent neighbours as well as allow for landscaped areas.
47Mr. Benczkowski submitted that rear detached garages/structures in the neighbourhood are built “lot line to lot line” in a north-south orientation, and are predominantly built of concrete blocks.
48When walking the rear laneway of St. Clarens Avenue both to the north and south of the subject property, the laneway is a densely built lane where garages are essentially built as “… ’row garages’ with zero setbacks provided between them.”2
49The proposed garden suite does not have any side wall fenestration on the second floor thereby ensuring privacy to the adjacent neighbours.
50The general purpose and intent of the angular plane provision in the Zoning By-law is to mitigate privacy issues as well as shadowing and loss of tree canopy.
51As cited above, the revised proposal does not include side wall windows on either the north or south elevations and any concerns of shadowing from the two-storey garden suite are mitigated by the fact that the adjacent structures to the north and south are garages.
52This also mitigates any impacts from the proposed angular plane projections into the side yard setbacks to the north and south.
53Furthermore, the neighbours immediately abutting the subject property to the north and south have not voiced any concerns regarding the Application.
54Additionally, no trees are proposed to be removed as a result of the garden suite.
55The Applicant has addressed the requirements related to the angular planes on the east and west sides of the proposal through revisions related to the siting of the garden suite.
56Finally, the depth of the subject lot and the increased amenity space have improved the proposal. Additionally, requiring the Applicant to comply with the 45-degree angular plane projection toward the side lot line seems punitive given that incorporating angular planes above a height of 4 m (13.12 ft.) in both the north and south elevations will significantly impact the overall viability of the livable space in the proposed garden suite.
57The intent and purpose of the two provisions for lot coverage and floor area are to ensure that the garden suite does not occupy too much of a lot and that a rear amenity area/yard is open and functional.
58The revised proposal requests a lot coverage of 24% of the lot area whereas a maximum of 20% is permitted, and a total floor area of 78.18 m2 whereas a maximum of 60.00 m2 is permitted.
59The requested lot coverage variance in the revised proposal represents a 1% increase from the original Application while the variance for the total floor area of a garden suite (Variance 6) is a new variance identified by the Zoning Examiner.
60Properties on Landsdowne Avenue are typically shallower lots than those on St. Clarens, including the subject property, and have less soft landscaping and amenity area.
61Given that the subject property is a deeper lot with a depth of 42.06 m (138 ft.), and the City’s Expanding Housing Options in Neighbourhoods – Garden Suites – Final Report3, addresses the appropriateness of larger garden suites on deeper lots such as the subject property, I agree with Mr. Benczkowski that the revised proposal will result in a built form that is appropriate for the area.
62Therefore, I am satisfied that the proposed variances for soft landscaping, side yard setbacks, angular planes, lot area and total floor area maintain the general intent and purpose of the Zoning By-law.
MINOR AND DESIRABLE FOR THE DEVELOPMENT OF THE LAND
63I find that there are no undue adverse impacts of a planning nature from the revised proposal. The proposed variances are minor in nature in consideration of both the numerical and qualitative aspects of the proposal, and the two-storey garden suite aligns with the objectives of both the provincial policy documents and the Official Plan.
64I agree with Mr. Benczkowski that the proposed development will not create overlook or shadowing impacts given that the subject property is located within a densely populated neighbourhood where there are minimal side yard setbacks between properties with existing dwellings and rear garages.
65I also agree that many of the properties both in the immediate and broader context have rear yards that have been paved over either with or without approvals and that this condition contributes to the existing physical character of the area.
66I find that the revised proposal for the development of a garden suite on the subject property will result in an additional dwelling unit that expands the rental housing stock in a neighbourhood that is well-served by public transit.
67On the basis of the above findings, I find the proposal to be minor and desirable for the appropriate development of the land.
CONCLUSION
68The Application appropriately implements the policies as set out in the City’s Zoning By-law Amendment 101-2022 (Garden Suites) as well as OPA 554 – Permitting Garden Suites.
69Therefore, I find the variances requested, individually and cumulatively, meet the tests of s. 45(1) of the Planning Act and are within the range of reasonable outcomes. represent good planning; I authorize the variances requested, subject to the conditions contained herein.
70Finally, 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.
71I find the revisions to the proposal to be minor, beneficial to the public interest, and an improvement to the Application; the amendments address concerns expressed by neighbours and are important to the proposal before the TLAB. Therefore, I find no further notice is required.
DECISION AND ORDER
72The Appeal is allowed; the decision of the Committee of Adjustment dated March 8, 2023, is set aside and the variances listed in Appendix A, below, 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
Panel Member
APPENDIX A
Revised List of Variances
- Chapter 150.7.50.10.(1)(A)(i), By-law No. 569-2013
A minimum of 50% (92.40 m2) of the rear yard must be maintained as soft landscaping.
In this case, 37% (69.09 m2) of the rear yard will be maintained as soft landscaping.
- Chapter 150.7.60.20.(5)(B), By-law No. 569-2013
The minimum required side yard setback for an ancillary building containing a garden suite is 0.76 m.
The ancillary building containing a garden suite will be located 0.2 m from the side (north) lot line and 0.07 m from the side (south) lot line.
- Chapter 150.7.60.30.(2)(A)(iii), By-law No. 569-2013
No part of an ancillary building containing a garden suite may penetrate a 45-degree angular plane projected towards the opposite lot line beginning from a height of 4 m from the required north and south side yard setback.
The ancillary building containing the garden suite will penetrate the 45-degree angular plane projected towards the opposite side lot line from the north side yard setback, beginning from a height of 4 metres from the required north side yard setback.
- Chapter 150.7.60.30.(2)(A)(iii), By-law No. 569-2013
No part of an ancillary building containing a garden suite may penetrate a 45-degree angular plane projected towards the opposite side lot line beginning from a height of 4 m from the required north and south side yard setback.
The ancillary building containing the garden suite will penetrate the 45-degree angular plane projected towards the opposite side lot line from the south side yard setback, beginning from the height of 4 metres from the required south side yard setback.
- Chapter 150.7.60.70(1)(B), By-law No. 569-2013
Despite regulations 10.5.60.70(1) and 10.10.60.70(1), if a lot has an ancillary building containing a garden suite, the lot coverage area may not exceed 20% (63.94 m2).
The ancillary building containing a garden suite will have a lot coverage area of 24% (78.18 m2).
- Chapter 150.7.60.70(1)(B), By-law No. 569-2013
Despite regulations 10.5.60.70(1) and 10.10.60.70(1), if a lot has an ancillary building containing a garden suite, the total floor area of the ancillary building containing a garden suite may not exceed 60.00 m2.
The proposed new two-storey garden suite will have a total floor area of 78.18 m2 [150.7.60.70(1)(C)(ii) Lot Coverage – Lot Coverage Requirement for a Lot with a Garden Suite].
APPENDIX B
Conditions of Approval
The dwelling shall be constructed substantially in accordance with the following Site Plan and Elevation drawings, dated April 17, 2023, prepared by Dennis Peter Kurfurst, and attached as APPENDIX C herein: Drawing A1 - Site Plan; Drawing A4 - East (North) Elevation; Drawing A5 – South (West) Elevation; Drawing A6 – South Site 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.
That the proposed new driveway from the rear of the existing residential dwelling (primary residence) on the subject property to the front of the proposed garden suite be constructed of permeable interlock pavers.
APPENDIX C
Site Plan Drawings