Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2023-08-17
22 128192 S53 25 TLAB,
22 128196 S45 25 TLAB,
22 128197 S45 25 TLAB
Welwood v Toronto (City), 2023 ONTLAB 124
DECISION AND ORDER
Issuance Date:
August 17, 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):
T. Welwood
Applicant(s):
Design Plan Services
Property Address:
70 Dunstall Cres.
COA File No.:
21 166698 ESC 25 CO (B0037/21SC)
21 166695 ESC 25 MV (A0205/21SC)
21 166697 ESC 25 MV (A0204/21SC)
TLAB Case File No.:
22 128192 S53 25 TLAB
22 128196 S45 25 TLAB
22 128197 S45 25 TLAB
Hearing Date(s):
Tuesday, August 15, 2023
Decision Delivered By:
TLAB Panel Member G. Swinkin
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
T. Welwood
A. Margaritis
Applicant
D. P. Services
Participant
I. Oncea
INTRODUCTION AND CONTEXT
1Tyler Welwood (the “Appellant”) is the owner of 70 Dunstall Crescent (the “Property”). The Property is a large, pie-shaped lot located on a curve of Dunstall Crescent. The neighbourhood of the Property is in what is referred to as the West Hill community of the former City of Scarborough.
2The Appellant sought to divide the Property into two essentially equal parcels and to obtain zoning variance relief to enable the construction of two new two storey dwellings on the resultant lots.
3For this purpose, the Appellant filed an application for consent and two variance applications with the Committee of Adjustment (the “Committee”). The Committee refused all three applications.
4The Appellant then filed appeals with respect to these refusal decisions and they are now before the Toronto Local Appeal Body (the “Tribunal”) for determination in accordance with the applicable law and policy.
5The Committee, at its hearing, had a communication before it from the City of Toronto Urban Forestry Division expressing concern over the proposed tree removals to implement this redevelopment proposal. The Committee also had before it a communication from the next-door neighbour to the west at 68 Dunstall Crescent, Ian Oncea, expressing concern over various aspects of the proposal, primarily directed at whether the new dwellings would fit in and be consistent with the existing character of the area. It is to be noted that there was no comment from the Community Planning Division of the City of Toronto.
6Between the time of the Committee hearing and this hearing at the Tribunal (which time period was extended at the request of the Appellant’s counsel on motion earlier brought), the Appellant has revisited the design of the proposal with the result that a number of trees which were earlier marked for removal can be retained. Further to review of the redesign and commitments as to new tree planting, the Appellant has resolved the issues identified by the City Urban Forestry Division to the effect that, as the Tribunal is advised, they are no longer opposed to the redesigned proposal.
7The Appellant also took into consideration the concerns expressed by Mr. Oncea and made certain adjustments to the dwellings and the positioning of the proposed westerly dwelling on the lot, all of which were intended to mitigate the expressed concerns.
8Mr. Oncea was advised of the changes by way of an email which was tendered as part of the Appellant’s document disclosure. The Tribunal was informed that Mr. Oncea did not respond to this communication. Although Mr. Oncea did file a request to be a Participant in this proceeding, he did not file a Participant Witness Statement, nor did he appear for the hearing.
THE LEGISLATIVE AND POLICY FRAMEWORK
Consent – S. 53
9The Tribunal 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).
Variance – S. 45(1)
10In considering the applications for variances from the Zoning By-laws, the Tribunal 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
11The Tribunal heard evidence from TJ Cieciura, an experienced land use planning consultant called by Appellant’s counsel, who was qualified by the Tribunal to proffer opinion evidence on land use planning matters in the proceeding.
12Mr. Cieciura filed a comprehensive witness statement in advance of the hearing, which statement set out the background to the applications, the general nature of the neighbourhood, the relevant law and policy applicable to the matters before the Tribunal and a clear and complete presentation of lot data pertaining to the lots within the identified geographic neighbourhood.
13Mr. Cieciura explained that the Property is located on the north side of Dunstall Crescent, between Beechgrove Dr. and Bennett Rd. The parcel of land consists of the whole of Lot 14 and part of Lot 15 on Registered Plan 3224. It is trapezoidal in shape due to its location on Dunstall Crescent where the road turns north-south, with a 22.9m front lot line and a general depth of 47.42m. The lot area is 1507m2.
14There is presently a one-storey detached dwelling located on the Property, which dwelling is to be demolished.
15Due to its unique shape, the Property is one of the largest lots on Dunstall Crescent as well as within the broader neighbourhood area.
16Mr. Cieciura advises that this is a single detached dwelling neighbourhood and that the dwellings are mostly 1-2 storeys in height, with mostly newer single detached dwellings having a larger scale and massing, integral garages and elevated main pedestrian entrances, while older homes appear to have front yard parking spaces or detached garages in the rear yards which are accessed through either front yard or side yard driveways, at a generally lower scale and massing.
17He further says that the design and height of newer dwellings is generally consistent throughout the entire neighbourhood. The design, height, and lot characteristics of the proposed dwellings advanced by the Appellant’s applications are consistent with the trend of new dwellings in the neighbourhood.
18The Property is currently zoned “RD (f13.5; a557) (x441)” under the City Comprehensive Zoning By-law 569-2013. This is a Residential Detached zone, with a minimum required lot frontage of 13.5 metres and 557 square metres minimum lot area for each single detached dwelling.
19Exception (RD 441) provides different site-specific provisions that are applicable to the Property as follows: (A). The minimum lot frontage is that which existed on the day of the enactment of this By-law; (B). The minimum lot area is that which existed on the day of the enactment of this Bylaw; (E). The minimum building setback from a side lot line is 1.2 metres; (G). An attached or detached garage must be setback a minimum of 0.3 metres from a side lot line that does not abut a street, and (H). These lands must comply with exception 900.3.10(1462). Exception 900.3.10(1462) provides the following site-specific provisions that are applicable to the Property: (A). The maximum floor space index for a lot with a dwelling unit in a permitted building type is: (iii). 0.4 times the lot area if the lot area is more than 697 square metres.
20The key thing to grasp here is that this exception zoning is what is characterized as preservation zoning, which simply casts the minimum standards as the existing characteristics. That explains what is described as the significant difference between the zoned lot frontage and area of the Property as presently constituted and that of the proposed lots.
21Mr. Cieciura conducted a lot study based upon data secured from the City for the geographic neighbourhood which he delineated.
22His findings are that the proposed lot frontages of 14.145m (Part 1) and 13.692m (Part 2) are within the range of 13.5m and 14.99m, which captures the standard zone requirement of 13.5m for this RD zone. As shown on his Lot Frontage Analysis, a significant number of lots are smaller than 15m (38.1%). Lot frontages between 15.0m and 17.99m are also comparable to the proposed lot frontages which consists of 42.2% of the lots within the neighbourhood. 18.2% of the lots have frontages at and/or above 18.0m, and only 1.5% of the lots have lot frontages at and above 27.96m which is the current site-specific lot frontage requirement for the Property.
23His Lot Area Analysis was also produced and included in the Document Disclosure. According to the Lot Area Analysis, 81.3% of the lots within the neighbourhood area are smaller than the proposed lot areas of 753m2 (Part 1) and 754m2 (Part 2).
24The key change to the site design arising out of the reconsideration was to use the existing driveway as the driveway to the westerly dwelling rather than create a new drive to the east side of the dwelling. This results in avoidance of healthy tree removal, to the extent of preservation of five healthy trees, and was considered satisfactory to the Urban Forestry Division.
25Furthermore, Mr. Cieciura pointed out that a decision was made to leave intact a portion of the foundation of the existing dwelling at its western extremity so as not to disturb the root system of a tree which Mr. Oncea wished to see spared of injury.
26Some adjustment of the building envelope for the westerly dwelling resulted in elimination of a side yard setback variance but created the need for a very slight (.05m) building depth variance. It was clear that this new variance was being introduced in order to create a ‘cure’ for a potential impact and the immediate neighbour had clear notice of the change.
27The finally modified list of variance relief being sought for the respective parcels is as follows: A - 70 Dunstall Crescent – Part 1 TLAB File #: 22 128196 S45 25 TLAB 1. Exception 441.(A), By-law 569-2013 The minimum required lot frontage is 27.96m. The proposed lot frontage is 14.145m. 2. Exception 441.(B), By-law 569-2013 The minimum required lot area is 1507m2. The proposed lot area is 753m2. 3. Exception 441.(H) and Exception 1462.(A)(iii), By-law 569-2013 The maximum permitted floor area is 0.4 times the lot area (301.2m2). The proposed floor area is 0.4883 times the lot area (367.67m2). 4. Exception 441.(E), By-law 569-2013 The minimum required side yard setback is 1.2m. The proposed west side yard setback is 1.13m. 5. Chapter 10.20.40.10(1)(A), By-law 569-2013 The maximum permitted height of a dwelling is 9m. The proposed dwelling height is 9.43m. B - 70 Dunstall Crescent – Part 2 TLAB File #: 22 128197 S45 25 TLAB 1. Exception 441.(A), By-law 569-2013 The minimum required lot frontage is 27.960m. The proposed lot frontage is 13.692m. 2. Exception 441.(B), By-law 569-2013 The minimum required lot area is 1507m2. The proposed lot area is 754m2. 3. Exception 441.(H) and Exception 1462.(A)(iii), By-law 569-2013 The maximum permitted floor area is 0.4 times the lot area (301.6m2). The proposed floor area is 0.5035 times the lot area (379.65m2). 4. Chapter 10.20.40.30(1), By-law 569-2013 The maximum permitted building depth is 19.0m. The proposed building depth is 19.05m. 5. Chapter 10.20.40.10(1)(A), By-law 569-2013 The maximum permitted height of a dwelling is 9m. The proposed dwelling height is 9.44m.
28Mr. Cieciura, from his review of the data, advises that the applications and proposed new detached dwellings are consistent with previous approvals in the neighbourhood.
29In this regard, with respect to the relief sought for Floor Space Index, he produced the following facts regarding recent approvals for new dwellings in the neighbourhood: • 212 Beechgrove Dr, approved with an FSI of 0.66 times the lot area (560m2). • 14 Janellan Ter, approved with an FSI of 0.58 times the lot area (356.2m2). • 20 Satok Ter, approved with an FSI of 0.529 times the lot area (282.94m2). • 29 Satok Ter, approved with an FSI of 0.583 times the lot area (284.75m2). He says that all FSI variances approved in the neighbourhood are similar or higher than the FSI proposed by these applications, which seek 0.4883 and 0.5035 respectively.
30On the strength of his analysis, he is of the opinion that the proposal is in conformity with Policy 4.1.5 of the City Official Plan concerning development criteria within Neighbourhoods designated lands regarding consistency with prevailing character.
31He further advises, with specific reference to the question as to whether the relief sought is minor, that one must note that impact is compared to the as-of-right building envelope and that the new single detached dwellings do not require variances for front yard or rear yard setbacks, side yard setback for Part 2 and only one side for Part 1 (which is internal to the proposal and only at the pinch point of the dwelling to the lot line), building length, building depth (except for Part 2, which is only over the permitted building depth by 0.05m), or lot coverage in accordance with the Zoning By-law. Furthermore, the height increment is relatively modest.
ISSUES AND ANALYSIS
32The foregoing reflects the salient points of Mr. Cieciura’s evidence on the key issues arising out of the appeals.
33Mr. Cieciura did fully canvas the relevant Official Plan policies and the relevant provisions of the Zoning By-law. His review brought him to the conclusion that the variances requested in this instance, as modified, satisfy the four tests of Section 45 (1) of the Planning Act, being that they are in keeping with the general intent and purpose of the Official Plan and the Zoning By-law, are desirable for the appropriate development or use of the Property and are minor. The Tribunal, on the evidence, accepts that opinion.
34Mr. Margaritis moved the Tribunal to exercise its jurisdiction to allow the requested modifications to the variance relief under the authority of Section 45 (18.1) of the Planning Act and to do so on the basis of not requiring further notice due to their being minor in the circumstances (as contemplated by Section 45 (18.1.1) of the Planning Act). The Tribunal was persuaded that the modifications as requested were appropriate and could be treated as minor in the circumstances and therefore not requiring further notice, and so allowed the requested modifications to the variance relief relating to both applications.
35Mr. Cieciura also canvassed the considerations in Section 51(24) of the Planning Act concerning the appropriateness of the proposed severance. His opinion was that proper regard was had for the matters detailed in that subsection and that it was appropriate to authorize the severance. The Tribunal accepts that opinion.
36Mr. Cieciura acknowledged the standard consent conditions which are imposed by the Tribunal and recommended their imposition.
37Mr. Cieciura also recommended certain conditions to be imposed on the variance approvals as an assurance on the built form commitments which had been made to the City Urban Forestry Division and to the neighbour. The Tribunal accepts this recommendation and will be imposing those conditions on its approval.
38Lastly, to be complete, Mr. Cieciura also addressed Provincial policy as required by Section 3 of the Planning Act. He offered the opinion that the proposal will be consistent with the Provincial Policy Statement, 2020 and will conform with the Growth Plan for the Greater Golden Horseshoe, 2020.
CONCLUSION
39For the reasons expressed above, the Tribunal will be allowing the consent appeal and will be allowing the variance appeals, with the relief modified as authorized in this proceeding and detailed in the Order below.
DECISION AND ORDER
40The Tribunal ORDERS THAT the variance appeals are allowed and the following variance relief, as modified before the Tribunal, is authorized, on the conditions applicable to both applications noted below:
70 Dunstall Crescent – Part 1 TLAB File #: 22 128196 S45 25 TLAB List of Final Requested Variances Requested Variances to The Zoning By-law (Part 1): 1. Exception 441.(A), By-law 569-2013 The minimum required lot frontage is 27.96m. The proposed lot frontage is 14.145m. 2. Exception 441.(B), By-law 569-2013 The minimum required lot area is 1507m2. The proposed lot area is 753m2. 3. Exception 441.(H) and Exception 1462.(A)(iii), By-law 569-2013 The maximum permitted floor area is 0.4 times the lot area (301.2m2). The proposed floor area is 0.4883 times the lot area (367.67m2). 4. Exception 441.(E), By-law 569-2013 The minimum required side yard setback is 1.2m. The proposed west side yard setback is 1.13m. 5. Chapter 10.20.40.10(1)(A), By-law 569-2013 The maximum permitted height of a dwelling is 9m. The proposed dwelling height is 9.43m.
70 Dunstall Crescent – Part 2 TLAB File #: 22 128197 S45 25 TLAB List of Final Requested Variances Requested Variances to The Zoning By-law (Part 2): 1. Exception 441.(A), By-law 569-2013 The minimum required lot frontage is 27.960m. The proposed lot frontage is 13.692m. 2. Exception 441.(B), By-law 569-2013 The minimum required lot area is 1507m2. The proposed lot area is 754m2. 3. Exception 441.(H) and Exception 1462.(A)(iii), By-law 569-2013 The maximum permitted floor area is 0.4 times the lot area (301.6m2). The proposed floor area is 0.5035 times the lot area (379.65m2). 4. Chapter 10.20.40.30(1), By-law 569-2013 The maximum permitted building depth is 19.0m. The proposed building depth is 19.05m. 5. Chapter 10.20.40.10(1)(A), By-law 569-2013 The maximum permitted height of a dwelling is 9m. The proposed dwelling height is 9.44m.
Minor Variance Conditions
- The external walls of the proposed dwelling shall be constructed substantially in accordance with drawings prepared by Mastech Design Inc. which are dated and identified, as per the below:
Site Plan - May 3, 2023.
West Elevation - May 3, 2023.
Where there are no existing City owned street trees, the applicant shall provide to Urban Forestry a payment in lieu of planting a street tree on the City road allowance abutting each of the sites involved in the application. The number of trees required to be planted is one (1) and the current cost of planting is $583.00 per tree, as it pertains to the proposed sites. Payments shall be made payable to the Treasurer, City of Toronto and sent to Urban Forestry, Scarborough Civic Centre, 150 Borough Drive, 5th floor, Toronto, Ontario, M1P 4N7.
Provide Urban Forestry with a grading plan and servicing plan for site construction.
41The Tribunal ORDERS THAT the consent appeal is allowed, and provisional consent is given on the following conditions:
Before a Certificate of Official is issued, as required by Section 53(42) of the Planning Act, the applicant is to fulfill the following conditions to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment:
(1) Confirmation of payment of outstanding taxes to the satisfaction of the Revenue Services Division, in the form of a statement of tax account current to within 30 days of an applicant's request to the Deputy Secretary-Treasurer of the Committee of Adjustment to issue the Certificate of Official as outlined in Condition 6.
(2) Municipal numbers for the subject lots, blocks, parts, or otherwise indicated on the applicable registered reference plan of survey shall be assigned to the satisfaction of the Supervisor, Surveys, Engineering Support Services, Engineering and Construction Services.
(3) One electronic copy of the registered reference plan of survey integrated to NAD 83 CSRS (3-degree Modified Transverse Mercator projection), delineating by separate Parts the lands and their respective areas, shall be filed with, and to the satisfaction of, the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services.
(4) One electronic copy of the registered reference plan of survey satisfying the requirements of the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services shall be filed with the Deputy Secretary-Treasurer of the Committee of Adjustment.
(5) Prepare and submit a digital draft of the Certificate of Official, Form 2 or 4, O. Reg. 197/96, referencing either subsection 50(3) or (5) of the Planning Act if applicable as it pertains to the conveyed land and/or consent transaction to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment.
(6) Once all of the other conditions have been satisfied, the applicant shall request, in writing, that the Deputy Secretary-Treasurer of the Committee of Adjustment issue the Certificate of Official.
(7) Within TWO YEARS of the date of the giving of this notice of decision, the applicant shall comply with the above-noted conditions.
G. Swinkin
Panel Member