Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
DECISION AND ORDER
Issuance Date: August 14, 2023
PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s): R. SEDIGHFAR
Applicant(s): CULTIVATE GROUP
Property Address: 75 THIRTY EIGHTH ST
COA File No.: 19 259142 WET 03 CO (B0073/19EYK), 19 259147 WET 03 MV(A0647/19EYK), 19 259148 WET 03 MV (A0648/19EYK)
TLAB Case File No.: 20 194385 S53 03 TLAB, 20 194386 S45 03 TLAB, 20 194388 S45 03 TLAB
Hearing Date(s): April 30, 2021 May 12, 2021, August 10, 2021 January 6, 2022 March 16, 2022 February 7, 2023 June 16, 2023 June 19, 2023 June 22, 2023
Deadline Date for Closing Submissions/Undertakings: July 7, 2023
Decision Delivered By: TLAB Vice Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Appellant | R. Sedighfar | I. Flett |
| Party | City of Toronto | D. Abimbola |
| Party | G. Mukherjee | |
| Party | Long Branch Neighbourhood Association | |
| Expert Witness | R. Freedman | |
| Expert Witness | M. Manett | |
| Expert Witness | C. Jewell | |
| Witness/ Participant | C. Mercado | |
| Participant | A. Donald | |
| Participant | E. Gomez | |
| Participant | R. McWatters | |
| Participant | R. Jamieson | |
| Participant | J. MacDonald |
INTRODUCTION AND CONTEXT
1This is an appeal of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for consent to sever the property known as 75 Thirty Eighth St, as well as applications for variances for two new detached dwellings on the proposed resultant lots.
2The Owner appealed the COA Decision, and the City, the Long Branch Neighbourhood Association (LBNA) and Mr. Mukherjee elected Party status in opposition to the Appeal.
3The subject property is located in the Long Branch neighbourhood of the former City of Etobicoke.
4A different Member of the Toronto Appeal Body (TLAB) was seized of this matter initially, and issued a number of interim decisions related to procedural and administrative matters.
5The assigned Member was not able to continue with this Appeal and I was assigned the file by the TLAB Chair prior to commencement of the hearing of evidence on June 16, 2023.
6The Parties had been advised in advance of the necessity to assign a new Member to this matter and were asked at the commencement of the Hearing on June 16, 2023, if this caused any concern. None were expressed.
7THE CONSENT REQUESTED
To obtain consent to sever the subject property into two residential lots.
8THE VARIANCES REQUESTED
Part 1 (North Lot)
Section 10.20.30.20.(1), By-law 569-2013 The minimum required lot frontage is 12 m. The lot will have a frontage of 7.62 m.
Section 10.20.30.10.(1), By-law 569-2013 The minimum required lot area is 370 m². The lot will have a lot area of 319.55 m².
Section 10.20.40.40.(1), By-law 569-2013 The maximum permitted floor space index is 0.35 times the area of the lot (111.72 m²). The new dwelling will have a floor space index of 0.56 times the area of the lot (178.4 m²).
Section 10.20.4.70.(3), By-law 569-2013 The minimum required side yard setback is 1.2 m. The new dwelling will be located 0.6 m from the south side lot line.
Part 2 (South Lot)
Section 10.20.30.20.(1), By-law 569-2013 The minimum required lot frontage is 12 m. The lot will have a frontage of 7.62 m.
Section 10.20.30.10.(1), By-law 569-2013 The minimum required lot area is 370 m². The lot will have an area of 320.32 m².
Section 10.20.40.40.(1), By-law 569-2013 The maximum permitted floor space index is 0.35 times the area of the lot (111.72 m²). The new dwelling will have a floor space index of 0.56 times the area of the lot (178.4 m²).
Section 10.20.40.70.(3), By-law 569-2013 The minimum required side yard setback is 1.2 m. The new dwelling will be located 0.6 m from the north side lot line.
9The property is designated Neighbourhoods in the Toronto Official Plan and zoned RD (f12.0; a370; d0.35).
10I advised those present at the Hearing that I had attended at the site and the surrounding area and had reviewed the pre-filed materials in preparation of the hearing of their evidence.
11This Appeal Hearing proceeded in accordance with Member Gopikrishna’s Interim Decision of July 15, 2022:
The Appeal respecting 75 Thirty Eighth St will proceed forward on the basis of the Plans and Elevations shared with the Committee of Adjustment in 2020, on the basis of which the latter made a decision at the hearing completed on August 27, 2020.
THE LEGISLATIVE AND POLICY FRAMEWORK
12Provincial 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’).
13Consent – S. 53
TLAB must be satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Act and that the application for consent to sever meets the criteria set out in s. 51(24) of the Act. These criteria require that " regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,
(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2 of the Planning Act;
(b) whether the proposed subdivision is premature or in the public interest;
(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;
(d) the suitability of the land for the purposes for which it is to be subdivided;
(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;
(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;
(f) the dimensions and shapes of the proposed lots;
(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;
(h) conservation of natural resources and flood control;
(i) the adequacy of utilities and municipal services;
(j) the adequacy of school sites;
(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;
(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and
(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).
14Variance – 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
15A summary of evidence is presented here for the purpose of providing some context for the following sections of this Decision. All of the voluminous evidence and the testimony in this matter has 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, but rather that the recitation of it does not provide context for the threads of reasoning that will be outlined in the Issues and Analysis section below.
16Mr. Manett provided expert land use planning evidence in support of the application, including as follows:
In a staff report dated August 20, 2020, City Planning staff advised the COA that they were of the opinion that the proposed consent application and associated minor variances met the general intent and purpose of the Official Plan and Zoning By-law, were minor and appropriate.
As required by Policy 4.1.5 of the Official Plan, Mr. Manett defined a study area.
He provided statistics describing the context of the application within the neighbourhood, based on property data and COA approvals.
In his opinion, there are many properties in the neighbourhood that are similar in nature to those being proposed and the development will fit comfortably within the neighbourhood.
17On behalf of the City, Ms. Jewell provided expert urban forestry, including as follows:
The boulevard in front of the subject property has been identified by the City as a tree planting site, although no tree has as yet been planted.
The proposal as designed will not allow the conditions for a large growing native tree to thrive in this location.
Toronto’s Strategic Forestry Management Plan standards require 30m³ of soil for a large canopy tree and the proposed design would yield only approximately 20m³.
18Ms. Mercado provided her opinion on behalf of the LBNA, including as follows:
The practice of lot severing prevents expansion of the tree canopy.
More recent COA and TLAB decisions have refused severances in the neighbourhood.
Severances are not appropriate since population growth in Long Branch is well above the City’s average and therefore the area is making its contribution to intensification.
Growth is supposed to go along the Avenues and Downtown, the Official Plan does not identify Neighbourhoods as areas of intensification.
The Long Branch Neighbourhood Character Guidelines (Character Guidelines), approved by City Council, should be considered an implementation tool for the Official Plan.
19Mr. Freedman provided expert Urban Design evidence in support of the LBNA.
He provided a thorough exposition of the Character Guidelines, their direction and the challenges of the applicant’s design, in that context.
Mr. Flett suggested to Mr. Freedman during cross-examination, that someone else could come to the conclusion that this proposal does meet the guidelines. Mr. Freedman disagreed. He said that there could potentially be a slight difference in interpretation “but that is not what this is. Elevated houses above a garage is not a slight difference. It is not contemplated” (by the Character Guidelines).
20Mr. Mukherjee’s property is located adjacent to the subject property. He advised as follows:
The characteristics of his own home reflect the characteristics of the neighbourhood.
He opposes the application because of the impact on the multi-generational family living in his home.
He expressed concern regarding the impact on affordability that this proposal would cause, displacing multiple tenants currently in the existing home on the subject property.
Specific concerns were the depth of the proposal, negative impact on his privacy particularly because of the high deck, and reduction of permeable landscape in the back yard.
21Participants MacDonald, Adams and Donald spoke in opposition to the proposal. The concerns expressed related to misplaced intensification, precedent, the view from the higher deck, and the incongruity of the proposal with the character of the neighbourhood.
ISSUES AND ANALYSIS
22The Applicant has initiated this appeal of the COA’s decision to refuse the applications. In order for the TLAB to approve the requested consent to sever and variances, I must be satisfied that the applications meet the requirements of the Planning Act. The burden rests therefore on the Applicant to provide evidence that fully substantiates that the applications meet the relevant requirements of s.53 and the four tests listed in s.45(1). Of necessity, therefore, this Decision will focus on the Applicant’s evidence and whether it fulfils the legislated requirements.
CONSENT TO SEVER
23I am satisfied that a plan of subdivision is not required pursuant to s. 53(1) of the Planning Act as the proposal is a division of the existing legal lot in a long-established area. No adaptation or construction of public infrastructure is required.
24Of the criteria set out in s. 51(24) of the Planning Act, I consider criteria (c) and (f) to warrant further discussion in this Decision.
(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any; and
(f) the dimensions and shapes of the proposed lots.
25As the Official Plan contains policy about dimensions and shapes of lots, I have folded consideration of both criteria c) and f) above into the discussion of the Official Plan, the general intent and purpose of which is the first test for the approval of variances under s. 45(1) of the Planning Act.
OFFICIAL PLAN
26Mr. Manett referenced the Healthy Neighbourhoods section of the Official Plan (OP 2.3.1) to establish that the Official Plan contemplates growth, change and infill in neighbourhoods. The section notes that some physical change will occur over time as enhancements, additions and infill housing occurs on individual sites.
27The Official Plan clearly contemplates that growth, change and infill can, and will, occur in neighbourhoods. The LBNA’s assertion that severances are inappropriate in neighbourhoods because the Official Plan directs intensification to Avenues, Centres and Downtown is not tenable. The Neighbourhoods designation allows a range of residential uses in lower scale buildings, up to four storeys high, and contemplates second suites, laneway suites and other appropriately scaled additions to the housing stock.
28Severances or increases in the number of housing units within a Neighbourhoods designation are not discouraged by the Official Plan. Such changes are provided for, and are subject to compliance with the appropriate policies and development criteria outlined in the Plan.
29A cornerstone of Official Plan policy is to ensure that new development in neighbourhoods respects the existing physical character of the area.
30OP Policy 4.1.5 provides direction for assessing the "fit" of development within a Neighbourhood. The policy contains within it development criteria that are intended to give greater specificity regarding the expectation for development in Neighbourhoods.
4.1.5 Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:
a) patterns of streets, blocks and lanes, parks and public building sites;
b) prevailing size and configuration of lots;
c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties;
d) prevailing building type(s);
e) prevailing location, design and elevations relative to the grade of driveways and garages;
f) prevailing setbacks of buildings from the street or streets;
g) prevailing patterns of rear and side yard setbacks and landscaped open space;
h) continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood; and
i) conservation of heritage buildings, structures and landscapes.
31The majority of the development criteria listed in OP Policy 4.1.5 relate to the built form. Criterion 4.1.5 b) prevailing size and configuration of lots is most relevant to the creation of new lots (the consent) and will be discussed first in this Decision.
Study Area and Immediate Context
32Mr. Manett identified a geographic area for which he analyzed property data and previous COA decisions. In addition, his maps (Exhibit 1, pdf page 34) mark an area with dashed lines consisting of both sides of the block of Thirty Eighth St where the subject property is located. This area would be consistent with the directions of OP Policy 4.1.5 for identifying the immediate context.
33The LBNA contested Mr. Manett’s delineation of the neighbourhood study area, which they asserted included an area on the west side which is subject to different zoning. For the purposes of this decision, I will accept Mr. Manett’s definition of a neighbourhood study area as shown on the map in Figure 1.
34OP Policy 4.1.5 states:
The physical character of the geographic neighbourhood includes both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context). Proposed development within a Neighbourhood will be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts. In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance.
35OP Policy 4.1.5 defines “prevailing” as the most frequently occurring form of development.
36In considering OP Policy 4.1.5 criterion b), prevailing size and configuration of lots, two lot characteristics are relied upon; lot frontage and lot area. Of the two characteristics, lot frontage is the more immediately apparent. Lot area significantly influences the resulting form and fit of the proposed houses on the lot.
LOT FRONTAGES
Long Branch Neighbourhood Character Guidelines (Character Guidelines)
37The purpose of the Character Guidelines is to serve as an implementation tool for the City of Toronto Official Plan, and the applicable zoning bylaws in the evaluation of development applications1.
38The Character Guidelines hone in on the physical characteristics that define the Long Branch neighbourhood and contain specific parameters. A key question addressed by the guidelines is the impact on traditional lot patterns resulting from the severance of larger (15.2m) lots and the production of 7.6m lots.
39One of the defining conditions identified in the guidelines is:
9.0m to 15.24m lot frontage and 35.0m to 45.0m lot depths, with exceptions where dictated through variations in the street and block network.
40With respect to this discussion of lot frontages, it is clear that the lot frontages proposed in the application are not within the scope of frontages that the guidelines identify as consistent with the neighbourhood character.
41Mr. Manett did not address the Character Guidelines directly in his evidence. When cross examined by the LBNA regarding this omission, he said he did not because the issue was dealt with by the Architect and accepted by Community Planning staff. (A checklist had been provided to Planning staff (Exhibit 4)).
42OP Policy 4.1.5 stipulates that proposed development within a neighbourhood will be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts. However, the policy provides that in instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance.
43Mr. Manett did not address OP Policy 4.1.5’s consideration of a potentially significant difference between the broader and immediate contexts in his Expert Witness Statement, or in his testimony. He did, however, assert under cross examination that “this block has a different character; the majority of the lots are smaller lots”.
44Mr. Manett did not lay a path of evidence for me to conclude that the immediate context constitutes a significantly different character than that of the broader geographic area. In the absence of such a justification, I recognize the stipulation of the Official Plan that development is to be materially consistent with the prevailing physical character of the broader neighbourhood. In the Long Branch neighbourhood, the defining condition for lot frontage has been detailed in the Character Guidelines as being between 9.0m and 15.24m.
45The LBNA and Mr. Freedman addressed the standing of the Character Guidelines, which are not a statutory document like the Official Plan, but which were approved by Council as an implementation tool for considering the defining physical character of Long Branch.
46In the absence of persuasive evidence or advice that the immediate context in this case should be treated as significantly different than the broader context, (as provided for in OP Policy 4.1.5), I am led to the description of prevailing lot frontages in the broader geographic area as the benchmark for assessing the proposed lots.
47The LBNA relied on the very definite range of frontages identified as a defining condition in the Character Guidelines. Mr. Manett did not define and identify the prevailing lot frontages in the neighbourhood, but rather advised that the lot frontages, as proposed, “are consistent with properties adjacent and nearby to them on Thirty Eighth St, and within the wider neighbourhood”. (Exhibit 1, paragraph 35).
Data Analysis
48The analysis of property data in Mr. Manett’s Expert Witness Statement does not consistently reflect the Official Plan defined areas (“broader neighbourhood” and “immediate context”). The analysis of lot frontage and lot area in his Expert Witness Statement (Exhibit 1) presents analysis variously for Thirty Eighth St, James St and Thirty Ninth St.
49It is somewhat challenging for me to gain an understanding of the prevailing lot frontages in the neighbourhood from Mr. Manett’s analysis. His summary statistics2 describe different groups of properties within the geographic area and present numbers and percentages that do not provide a clear understanding of the prevailing lot frontages in the defined geographic neighbourhood or immediate context.
City Property Data
50Mr. Manett advised that 22.24% of properties in the study area have frontages less than the minimum 12m. This is not of great assistance in understanding whether lot frontages of 7.6m specifically are part of the prevailing character of the neighbourhood.
51In paragraph 20 of his Expert Witness Statement, Mr. Manett advised that 22 properties on Thirty Eighth St have 7.62m frontages and 21 have 15.24m frontages. I asked Mr. Manett to clarify whether by “Thirty Eighth St” he meant all addresses on Thirty Eighth St, or just the ones within the area that would be defined as the immediate context. He advised it referred to the properties within the block on either side of the subject property, which he stated consisted of 32 properties.
52In reference to this paragraph in his Expert Witness Statement, I cannot reconcile Mr. Manett’s testimony about the numbers of properties with 7.62m and 15.24m frontages, as they add up to a greater number than the total number of properties within the defined area.
53The numbers of properties with frontages below 8m (shown in Mr. Manett’s lot frontage analysis map) for the defined area also does not tally with the number identified in his Expert Witness Statement as having a frontage of 7.62m. (Exhibit 1, paragraph 20 and map in Figure 1).
Committee of Adjustment Decisions
54Mr. Manett provided an analysis of Committee of Adjustment decisions3. He advised that past COA decisions “show that similar development proposals in the area are common and on Thirty Eighth Street specifically such applications have been approved with conditions”.
55Mr. Manett provided a chart of past COA decisions (Exhibit 1, pdf page 36). I note that within the table are entries of addresses that fall outside his denoted study area, applications which were refused and applications which were noted as approvals that were denied on appeal.
56Mr. Manett’s Expert Witness Statement says there were 11 proposals in the geographic neighbourhood approved for frontages of 7.62m or less. He did not identify the number (nor addresses) of these proposals that are located within the immediate context as defined by the Official Plan.
57Mr. Manett did specifically identify 74 Thirty Eighth St, directly across the street from the subject property as a comparable example. He advised that the proposal was approved with conditions, allowing minor variances for lot frontage of 7.62m, lot area of 306.6m², side yard setbacks and an FSI of 0.59.
58The LBNA and counsel for the City established that Mr. Manett’s decision data did not take into account the final disposition of the COA applications. In particular, the City provided evidence of the TLAB’s refusal, on appeal, of the proposal to sever the property at 74 Thirty Eighth St.
Mr. Manett conceded under cross examination that no severances had been approved following the adoption of Official Plan Amendment 320 (which introduced the standard of respecting and reinforcing prevailing neighbourhood characteristics) and the adoption of the Character Guidelines. He conceded that it may have been that consents were common but are no longer.
59The difficulty in coming to grips with the application of numbers and percentages to various groups of properties contained in Mr. Manett’s evidence confuses the Applicant’s case in justifying that the proposed frontages respect the prevailing (as defined in the Official Plan) lot frontages in the geographic neighbourhood.
LOT AREA
60In considering Mr. Manett’s evidence with respect to lot areas, I had similar difficulty in reconciling the numbers and percentages presented in Mr. Manett’s evidence with the context areas defined by the Official Plan and with the data contained in his table of COA decisions.
61Mr. Manett provided percentages for the following groups of properties: “Thirty Eighth Street”, “James Street, Fortieth Street and Thirty Nineth Street” and “Study Area”.
62In the last category, which I understand to be consistent with a geographic neighbourhood as defined in the Official Plan, he stated that 26.1% of properties have a lot area less than 320m². (Paragraph 26)4.
63Mr. Manett did not explain how, or whether, this proportion of the total lots in the geographic neighbourhood fulfils the requirements of OP Policy 4.1.5 in terms of prevailing size and configuration of lots, and he did not address the provisions in the Policy which provide for a nuanced consideration of characteristics which may still fit the neighbourhood even though they may not be prevailing (most frequently occurring).
OP Policy 4.1.5 criterion b) Conclusion
64For a severance to be approved, regard must be had for the Planning Act criteria in s. 51(24), including whether the plan conforms to the official plan and the dimensions and shapes of the proposed lots. OP Policy 4.1.5 provides specific criteria for development in Neighbourhoods. While a statistical picture of lot frontages and lot areas has been sketched in the evidence of the Applicant, this statistical analysis has not been presented in the context of the spelled-out requirements of the policy.
65In contrast, Mr. Freedman carefully addressed the requirements of the Official Plan as a whole, and OP Policy 4.1.5 with respect to the broader and immediate contexts, specifically explained the terms/ definitions of the policy, and contextualized the purpose of the Character Guidelines within the policy framework of the Official Plan. Mr. Freedman’s conclusion was that the applications do not maintain the general intent and purpose of the Official Plan.
66The burden remains with the Applicant to satisfy the TLAB that the intent and purpose of the Official Plan have been met. In the context of my analysis of criterion b) prevailing size and configuration of lots, I find that the intent of OP Policy 4.1.5 has not been satisfied.
Not “prevailing” lot size and configuration but still “fit”?
67The general expectation of the OP, as seen in the preamble to Policy 4.1.5, is that physical changes to established neighbourhoods must be sensitive, gradual, and “fit’ the existing character. A qualitative analysis of the proposal alongside the more comparative quantitative analysis (that is precipitated by the “prevailing” benchmark articulated in the Policy) could add an additional perspective to the question of “fit”.
68The question raised by this approach would be whether the combined features of the proposal can still “fit” the neighbourhood when the requested lot frontage and lot areas have not been shown to meet the OP standard for prevailing lot sizes. In other words, is it feasible that the proposed buildings fit the context of the neighbourhood well enough that the undersized lots are supportable. i.e., that the consent to sever is justified on the basis of the proposed built form?
69The criteria focused on built form in OP Policy 4.1.5 are relevant to consideration of how the proposed buildings fit the context, and whether the proposal respects and reinforces the existing physical character of the geographic neighbourhood. Of these, OP Policy 4.1.5 c) is the most immediately pertinent for discussion, in light of the requested Floor Space Index (FSI) variance.
4.1.5 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;
Heights, Massing, Scale
70Mr. Manett’s Expert Witness Statement states that “The proposed height, massing and scale of the proposed developments are consistent with and respect and reinforce the prevailing physical character of the neighbourhood and do not create any adverse impacts on adjacent properties.” (I note that the “density” was not included in this statement).
71There was no further analysis or explanation of the foundation for Mr. Manett’s opinion evidence with regard to heights, massing, or scale. He characterized each of the proposed houses as “a modest two-storey dwelling that fits comfortably on its site.”
72I acknowledge Mr. Manett’s experience and qualifications. However, opinion without substantiation does not carry the weight of evidence.
73Although Mr. Manett did provide photographic evidence, it was difficult to relate those pictures to the other evidence presented, and difficult to derive a sense of the prevailing massing and physical character of the neighbourhood from them. A photograph of a design similar to the proposal within the Immediate Context could have been helpful.
74Mr. Freedman and the LBNA provided exhaustive evidence and testimony that the massing and built form of the proposed houses do not respect and reinforce the existing physical character of the geographic neighbourhood. Mr. Freedman provided an urban design analysis of the proposal, including a detailed assessment of compliance with the Character Guidelines.
75The Applicant’s representatives rebuffed some of the concerns related to building massing and scale by asserting that the height, building length, building depth and setbacks are within the maximums permitted by the By-law and each, separately, is permitted by the By-law. What is at issue, though, is that the imposition of a floor space maximum in the By-law limits the expression of all of those maximums simultaneously in order to maintain the appropriate massing and scale in context with the neighbourhood.
76Mr. Freedman’s evidence was that the proposed two new buildings on undersized lots, seeking additional fsi, change the interplay of provisions in the By-law and “force a built form of these garage houses, dominating at grade, elevating up in the air, emphasizing the vertical in many ways”.
77I prefer the evidence of Mr. Freedman with respect to the massing and scale of the proposal.
78For the variances to be approved, the burden remains with the Applicant to satisfy the TLAB that the proposal maintains the general intent and purpose of the Official Plan with respect to OP Policy 4.1.5 c). In addition, the lack of supporting analysis regarding built form compatibility precludes a conclusion that the proposed buildings fit the context well enough that the undersized lots are supportable.
Density
79The density of the proposal is, in my opinion, the crux of this matter. Density, in this context, means the size of the building in relation to the lot on which it is located. In the By-law, the floor space index (FSI) is the numerical indicator of what the OP refers to as “density”. It is the ratio of the gross floor area of the building to the area of the lot.
80The core of the opposing Parties’ concern is that the proposed lots are too small and the proposed houses are too big to respect and reinforce the existing neighbourhood context.
81In his evidence, Mr. Manett referenced the existence of lots in the Immediate Context block that already have lot frontages of 7.6m. The LBNA countered that these are longstanding lots with houses that have, in general, floor space indexes below the maximum allowed in the Zoning By-law. The inference being that if Mr. Manett was justifying the “fit” of the proposal with smaller lots in the Immediate Context then that justification should equally bind the proposal to the much smaller houses on those smaller lots.
82Mr. Manett did not give opinion evidence that the Immediate Context should be considered of greater relevance (within in the framework of OP Policy 4.1.5)5. Instead, he opined that the characteristics of the proposal (and the requested variances) respect and reinforce the characteristics of the broader neighbourhood.
83Mr. Manett provided evidence of FSI’s in the neighbourhood study area based on the City’s property data. He acknowledged that the City property data can be out of date and inconsistent but advised that it was the only source of information about existing development in the neighbourhoods.
84Paragraph 28 of Mr. Manett’s Expert Witness Statement states 5 properties on “Thirty Eighth Street” have an FSI over 0.6 times the area of the lot. I am not clear whether this captures all properties on Thirty Eighth St, or just the properties on each side of the block on which the subject property is located (the immediate context). He did not provide source data nor a map by which I could validate this statistic or any other context as to the relevance of this information.
85Only one comment regarding FSI’s approved by the COA is contained in Mr. Manett’s Expert Witness Statement (Exhibit 1, paragraph 30). His evidence was that “11 out of 14 properties had proposals for an FSI between 0.51 and 0.61 and were approved with conditions”. The LBNA challenged this assertion and documented in their Disclosure (Exhibit 8) that at least three of those approvals were overturned on appeal6. In any event, without explanation, location, and context, I do not find this statistic particularly helpful in understanding how many properties with similar FSI’s might exist in the neighbourhood and whether they exist in sufficient numbers to form a legitimate part of the existing physical character of the neighbourhood.
86Mr. Manett has provided limited analysis regarding FSI. I accept the assertion that almost a third of properties in his study area are over the maximum permitted by the Zoning By-law, which is 0.35. This, however, does not materially assist in considering whether the 0.56 FSI proposed is within the prevailing FSI, or is represented in the neighbourhood in substantial numbers. Similarly, the advice that 5 properties on “Thirty Eighth St” have an FSI over 0.6 does not shine light on the central question. Finally, the statistic that 11 out of 14 applications for density within a range of 0.56 and 0.61 were approved was called into question and, in any event, does not address the central question with enough explanation or context to be meaningful.
87Mr. Manett’s testimony was that the COA data from the last ten years shows an area in “transition” and opined that the trend is generally to build larger houses than in the past. He conceded under cross examination, however, that it may be that consents (lot severances) were common but are no longer and that development proposals with all of the components (lot area, frontage and FSI) being requested in this application are not common.
Conclusion
88For all of the reasons outlined above, I am not satisfied that the Applicant has provided a sufficient foundation of evidence to support a determination that the proposal maintains the general intent and purpose of the OP Policy 4.1.5 b) and c). Therefore, I do not find that the applications maintain the general intent and purpose of the Official Plan.
89In concert with my finding that the proposal does not maintain the general intent and purpose of the Official Plan, I am not satisfied that the proposal conforms to the OP as required by s. 51(24)(c) of the Act, which is a requirement for approval of the application for consent to sever.
90The findings above on their own are sufficient for both the consent to sever and the variances to fail. For the sake of completeness, I will address the remaining three tests mandated for the approval of variances: maintenance of the general intent and purpose of the Zoning By-law, “desirable for the use of the land”, and “minor”.
ZONING BY-LAW
91The high-level purpose of the Zoning By-law is to implement Official Plan policy. In other words, the standards and provisions in the By-law are intended to reflect the intent of the Official Plan and are deemed to do so7.
Lot Frontage and Lot Area Variances
92For the reasons outlined in the discussion of the Official Plan, I similarly find that the evidence presented by the Applicant is insufficient to conclude that proposed lot frontages and lot areas maintain the general intent and purpose of the Zoning By-law.
Floor Space Index Variance
93The provisions of the By-law do not operate in isolation. The intent and purpose of the FSI maximum in the By-law, for which there is a variance requested in this case, is to assert an additional level of control beyond that which is provided by the By-law building envelope parameters – height, length, depth, and rear, front and side yard setbacks. The purpose of the FSI maximum in the By-law is to regulate the total amount of development on the site, even if the development otherwise meets all the setback requirements. In the language of the governing OP, the overall proposal should reflect the prevailing scale, massing and density (amongst other features) of the neighbourhood.
94Mr. Manett advised that the intent of the FSI provision in the By-law is to provide for a house that fits appropriately on the lot. In his opinion, the proposal is for “modest dwellings that provide for a (modern) family’s needs and fit within the context”.
95It is Mr. Manett’s opinion that the proposed houses fit appropriately on the proposed lots.
96It is Mr. Freedman’s opinion that the proposed houses do not fit appropriately on the lots on the basis that the excessive FSI sought distorts the massing of the designs and renders them unfit in the context. Mr. Freedman has substantiated his opinion with a detailed urban design analysis.
97Mr. Manett’s opinion rests on the statistics that were discussed earlier in relation to the Official Plan and on a generalized description of the “fit”;
“the proposed FSI for each of Parts 1 and 2 is 0.56 times the area of the lot (178.4m²) which provides for a modest two-storey dwelling that fits comfortably on its site…”
98I find Mr. Manett’s opinion regarding the fit of the proposed houses in relation to the proposed lots to be generalized and lacking evidentiary support. Mr. Manett conceded under cross examination that development proposals with all of the components (lot area, frontage and FSI) being requested in this application are not common in the neighbourhood.
99With respect to the general intent and purpose of the FSI provision in the Zoning By-law, I prefer the evidence of Mr. Freedman.
100I find that there is insufficient basis to conclude that the proposals maintain the general intent and purpose of the Zoning By-law with respect to FSI.
Side Yard Setback Variances
101I accept Mr. Manett’s evidence that the proposed 0.6m setback between the proposed two new houses provides sufficient space for access and maintenance along the side yard between dwellings, resulting in no adverse impact on neighbouring properties.
102The side yard setback variances have been justified on the basis of this particular design and proposal. Since I have previously found that the proposal does not meet the burden to satisfy that the general intent and purpose of the Official Plan and Zoning By-law (with respect to FSI) are met, the variances for side yard setback will not be approved.
DESIRABLE FOR THE DEVELOPMENT OF THE LAND
For the same reasons outlined above, I find that the proposal does not constitute good planning and therefore that this test has also not been met.
MINOR
103The test for “minor” focuses on the scale and nature of perceived impact caused by the variances. The courts have established that the test is not that there be no impact, but that the imputed impact rises to the level of being an undue adverse impact of a planning nature.
104Mr. Mukherjee’s concern regarding overlook and privacy from the deck at the rear of the proposed house adjacent to his property is founded on the unusual height of this deck. It is located more than 2m above actual grade at the rear, exceeding the maximum permitted height for a fence. Nonetheless, the platform qualifies as a deck under the Zoning By-law because of the calculation of “established grade” and is permitted as of right by the By-law were the proposal to be approved with the requested variances.
105The concerns regarding an extended side wall between Mr. Mukherjee’s property and the subject property are symptomatic of the proposed scale, massing and density discussed earlier in this decision.
STATUTORY TESTS CONCLUSION
106I find that evidence in support of the proposed severance and variances do not meet the burden to satisfy the TLAB that criterion s. 51(24)c) of the Planning Act and that the four tests of s. 45(1) have been met.
ADDITIONAL COMMENTS
City Tree Planting Site
107The City appeared at the Hearing in opposition to the granting of the severance. The City’s only witness, Ms. Jewell, however, was qualified to give evidence on urban forestry, not on city planning matters.
108Ms. Jewell’s knowledge of the City’s broader tree planting policies and practice was somewhat limited. She provided evidence on tree planting standards, i.e., how many cubic meters of soil are ideal to sustain a large growing native tree but was not able to contextualize the expectations of the City as a whole, was not able to explain the criteria that are applied for selecting a planting location for street trees, could not say whether utilities could obstruct the planting of a large growing native tree in front of the subject property and could not say when, if ever, the City would actually plant a tree in this location.
109I find the City’s suggestion that the severance be refused because insufficient soil volume on the front boulevard would be available to support the most desirable class of tree, potentially, some time in the future, to be a very long stretch. Especially since Ms. Jewell attested that a smaller tree could be viable in the location proposed.
Opinion of City Planning Staff
110The Applicant’s representatives relied on the staff report from City Planning dated August 20, 2020, in which they advised the COA that they were of the opinion that the proposed consent application and associated minor variances met the general intent and purpose of the Official Plan and Zoning By-law, were minor and appropriate. In particular, Mr. Manett relied on the opinion of Community Planning staff and did not feel the need to address the Character Guidelines in his evidence.
111The LBNA asserted that City Planning staff’s opinion has evolved since this report was written in 2020.
112While I appreciate the role of City Planning staff and respect their expert advice, City Planning staff were not in attendance at the Hearing. This is a hearing “de novo” meaning that the entire application must be considered anew. I give very limited weight to City Planning staff’s advice to the COA. Similarly, I give no weight to conjecture that City Planning staff’s opinion has evolved since 2020. This Decision relies on evidence submitted through the appeal process and tested in the Hearing.
CONCLUSION
113As noted at the beginning of this Decision, it rests upon the Applicant to provide a sufficient basis in evidence for the TLAB to reach the conclusion that the applications meet the tests set out in legislation. It is not sufficient for the Applicant’s representatives to attempt to counter the opposition’s evidence and testimony, it is also incumbent upon them to positively provide a sufficient foundation for approval.
114I find that the Applicant has not provided a sufficient basis in their evidence for the TLAB to be satisfied that the applications maintain the general intent and purpose of the Official Plan and the Zoning By-law, and are desirable for the development of the land. I also find that the application for consent to sever the subject property has not been shown to conform to the Official Plan.
DECISION AND ORDER
115The Appeal is dismissed. The Committee of Adjustment decision noted above is final and binding, and the file of the Toronto Local Appeal Body is closed.
A. Bassios Panel Chair
Footnotes
- Long Branch Neighbourhood Character Guidelines page 1 (Exhibit 8 pdf page 1430).
- The source City property data was not provided.
- For approximately the last ten years.
- The source City property data was not provided.
- “In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance.”
- 74 Thirty Eighth St, 32 Thirty Sixth St and 9 Thirty Eighth St.
- OP Policy 4.1.8 - Zoning by-laws will contain numerical site standards for matters such as building type and height, density, lot sizes, lot depths, lot frontages, parking, building setbacks from lot lines, landscaped open space and any other performance standards to ensure that new development will be compatible with the physical character of established residential Neighbourhoods.