Toronto (City) v. Romano, 2023 ONTLAB 126

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-08-22

23 111047 S45 12 TLAB

Toronto (City) v. Romano, 2023 ONTLAB 126

DECISION AND ORDER

Issuance Date:

August 22, 2023

PROCEEDING COMMENCED UNDER Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s):

CITY OF TORONTO

Applicant(s):

FRANCO ROMANO

Property Address:

68 ALCORN AVENUE

COA File No.:

22 173360 STE 12 MV (A0787/22TEY)

TLAB Case File No.:

23 111047 S45 12 TLAB

Hearing Date(s):

Monday, July 17, 2023,

Tuesday, July 18, 2023,

Wednesday, July 19, 2023

Deadline Date for Closing Submissions/Undertakings:

July 20, 2023

Decision Delivered By:

TLAB Panel Member R. Kanter

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

F. Romano

Owner

M. Fortier

Appellant

City Of Toronto

Y. Peer

L. Bisset

Party

M. Fortier

M. Kemerer

Party

M. Colin

Expert Witness

F. Romano

Expert Witness

M. Barton

Expert Witness

City Of Toronto

C. Williamson

Expert Witness

Z. Georgis

INTRODUCTION AND CONTEXT

1On September 1, 2020, the Committee of Adjustment (the “C of A”) approved two variances to add a second level to an existing deck at the rear of 68 Alcorn Avenue (the “Site”).

2The variances approved by the C of A in 2020 are as follows:

• Variance 1 allowed the height of the second level height addition to be 3.67 m above the ground

• Variance 2 allowed the addition to encroach no more than 2.9 m into the required rear yard setback, .31 m from the west lot line (collectively, the “2020 Approval”)

3The Site is a trapezoid with five sides as shown on a survey prepared by Pearson + Pearson revised Sept. 26, 2022 (the “Survey”). A copy of the survey showing the site is attached as Attachment “A”.

4The rear yard lot line of the Site abuts a public lane located north of Alcorn Ave. which provides vehicular and pedestrian access to residents of 22-88 Alcorn Ave. and 27-79 Walker Ave. (the “Lane”). The Lane contains a jog to the rear of the Site and 66 Alcorn, the adjacent lot to the east of the Site.

5The 2020 Approval was not appealed prior to Sept. 15, 2020, the last date of appeal.

6Following Sept. 15, 2020, the Owner submitted plans to construct the addition to the rear deck. On May 19, 2021 building permit 18 188142 BLD 00SR (the “Building Permit”) was issued to allow the construction of the addition. The Owner/Applicant subsequently began construction of the deck addition, including the installation of posts and floor boards.

7On October 26, 2021 the City issued an Order to Comply, which states that:

“The rear yard setback of the constructed deck does not meet the required setback of 1.68 metres . . . The west side yard setback of the deck does not meet the issued building permit drawings” (the “Order”).

The Order required new plans to be submitted to obtain the necessary permit.

8On January 31, 2022 the Owner submitted additional material in response to the Order, which was subsequently accepted by the City. On April 11, 2022, the City issued a zoning notice describing variances from Zoning By-law 569-2013 (the “ZBL”). On July 7, 2022, the Owner submitted revised plans and requested a further hearing at the C of A concerning the rear deck addition.

9On July 30, 2022 the City issued a second zoning notice describing variances required at the Site.

10On Sept. 22, 2022, the Owner issued further revised plans in support of his minor variance application (the “Plans”). The Plans are attached as Attachment “B”.

11On Oct. 12, 2022, the City issued a third zoning notice. On Oct. 19, 2022, the Owner requested a deferral of the C of A hearing scheduled for that date, in response to the third zoning notice.

12On Oct. 31, 2022, the City issued a fourth zoning notice concerning the Site. According to the Oct. 31 Notice, the Application was not in compliance with three provisions of the ZBL:

1. Rear year soft landscaping: 25% required; 11.07% requested

2. Deck encroachment into rear yard setback: 1.5 m required; 6.93 m requested

3. Level of deck addition: required to be at the level of the storey from which it gains access; 1 m. higher requested (collectively, the “Revised Variances”).

13On Jan. 18, 2023, the C of A approved the Revised Variances (the “2023 Approval”).

14On February 7, 2023, the City of Toronto (the “City”) appealed the 2023 Decision.

15On March 9, 2023, Ms. Maryanne Colin, a neighbour at 70 Alcorn Ave., immediately west of the Site, requested Party status in support of the City’s appeal of the 2023 Approval.

16I attended at the Site and viewed the neighbourhood prior to the TLAB hearing held on July 17, 18 and 19, 2023.

LEGISLATIVE FRAMEWORK

17A 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.

18Variance – 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

A – Evidence of the Owner/Applicant

19Counsel for the Owner/Applicant called two expert witnesses in support of the Revised Variances: Ms. Zara Georgis and Mr. Franco Romano.

20I qualified Ms. Georgis as an expert witness in the field of transportation planning and entered her expert witness statement as Exhibit 1.

21Ms. Georgis compared the sightlines for cars using the Lane resulting from the Revised Variances with those resulting from a fence formerly located on the northerly boundary of the site. Ms. Georgis did not see the fence but relied on photos provided by Mr. Romano to determine its location.

22Ms. Georgis provided her opinion that the Revised Variances would result in an improved cone of visibility for vehicles travelling westbound and eastbound in the Lane, compared to the obstruction to visibility resulting from the former fence.

23In response to a question from the Panel Member, Ms. Georgis stated that if the deck addition were constructed in accordance with the applicable ZBL requirements rather than the Revised Variances, sightlines would be further improved.

24I qualified Mr. Romano as an expert witness in land use planning and entered his witness statement as Ex. 2.

25According to Ex. 2 and Mr. Romano’s oral evidence, the Site is trapezoidal shaped with five lot lines. The east and west sides are parallel. The north lot line consists of a short portion of .56 m parallel to the south lot line. However, it also contains a much longer portion of 6.23 m angled to the southeast, south of the jog in the Lane.

26The building on the Site is a townhouse dwelling located at the west end of an eight unit building with 3 levels above an underground garage fronting on Alcorn, backing on to the Lane.

27According to Mr. Romano, the “apex” (or northerly triangular portion) of the proposed deck is intended for landscape plantings and furnishings, not for deck furniture or use.

28Mr. Romano provided evidence concerning the history of the application. He reviewed several plans provided prior to the issuance of the Building Permit:

• Proposed Deck Site Plan (the “Site Plan”), found in Ex. 2, page 168;

• Proposed Deck Deck Plan (the ‘Deck Plan”) found in Ex. 2, p. 72; and

• Proposed Deck Deck Foundation Plan (the “Foundation Plan”) found in Ex. 2 at p. 171.

29Mr. Romano wrote that the setbacks on the Site Plan appear to conflict with those shown on the Deck Plan. He provided a Deck Plan Overlay (the “Overlay”), which compared the deck dimensions described in the Site Plan, the Deck Plan and the Revised Variances (Ex. 2 p. 190).

30Mr. Romano stated that the dimensions in the Deck Plan and Foundation Plan were more detailed than those in the Site Plan. In his opinion, the plans in support of the Revised Variances are generally consistent with the plans submitted and approved by the City following the 2020 Approval, which was not appealed.

31Mr. Romano also provided comments on the planning status of the three Revised Variances. In his view:

-No soft landscaping variance is required, since it was not required by the 2020 Approval;

-The rear deck encroachment, in length and west side setback, is consistent with the encroachment approved by the 2020 Approval; and

-No height variance is required since it was not a subject of the Order, and the height complies with the 2020 Approval.

32Mr. Romano stated that the Site is located in a neighbourhood characterized by dense urban character with a generous supply of elevated platforms, including rear and rooftop decks. Lot sizes are compact, resulting in overlook, shadow and other impacts associated with inner city living. Constraints and challenges with site access and egress, including obstructions, are commonplace.

33He described the rear yards of the adjacent properties as containing principal buildings, fences, gates, garages, accessory structures, covered parking or carports, and some landscape plantings.

34Mr. Romano identified the broader neighbourhood as bordered by Yonge St. to the east, the CPR rail line to the south, Avenue Road to the west, and Balmoral Avenue to the north. He identified the immediate context as the 65 properties abutting the Lane.

35Mr. Romano stated that rear yards in the immediate context are characterized by substantial parking, hard surfaces, and garages. They are also characterized by elevated structures and amenity spaces, together with dwelling windows, which allow overlook consistent with a compact and dense urban environment. Some of the fences and garages extend to the property line or encroach on the Lane, and impact sightlines and visibility along the Lane. He referred to photos showing existing fences, garages and rear decks in the neighbourhood in Ex. 2 at pages 41-88 and approvals of similar variances at pages 89-91.

36Mr. Romano referred specifically to the rear of 66 Alcorn, located immediately east of the Site, and also backing largely on the southeasterly jog in the Lane. He noted that a fence of a similar height to the railing of the proposed deck was located on or close to the rear lot line of 66 Alcorn.

37Mr. Romano opined that the Revised Variances meet the general intent and purpose of the Yonge-St. Clair Secondary Plan, since it protects, promotes and enhances the existing Neighbourhood. The Revised Variances also promote personal safety by providing an expanded deck which will encourage eyes on the Lane.

38Mr. Romano also opined that the Revised Variances meet the general intent and purpose of the City’s parent Official Plan, since they respect and reinforce the existing physical character of the immediate context. Ex. 2 includes photos and decisions with examples of fences and garages located on the border of lots with the Lane, and decks at a height similar to that proposed.

39Mr. Romano was of the opinion that the Variances meet the general intent and purpose of the Zoning By-law 569-2023 (the “ZBL”). He wrote that maintaining 11.07% of the rear yard for soft landscaping is greater than that provided on many lots in the immediate context. The length of the proposed deck is shorter than a fence or garage permitted to extend right to the rear lot line. It will have open sides, which permit greater visibility than the fence previously existing on the site as of right. The height of the addition to the rear deck is based on a technical interpretation which designates what appears to be the ground floor as the second story and is consistent with the 2020 Approval.

40Mr. Romano further opined that the Revised Variances are minor. They accommodate more open views through the Site than the previously erected board fence and gate and reduce any interference with views along the Lane.

41Mr. Romano also opined that the Variances are desirable, since they represent an appropriate accessory feature for the Site and provides an expended outdoor amenity space and a car port over an existing parking space.

42Mr. Romano stated that the proposed Variances are consistent with the Provincial Policy Statement and conform with the Growth Plan.

43Prior to her cross-examination, counsel for the City pointed out that the Owner/Applicant had not provided a landscape plan showing soft landscaping. Counsel for the Owner agreed to provide a landscape plan for review by the City and Ms. Colin.

44Ms. Peer questioned Mr. Romano with respect to discrepancies in plans which the Owner/Applicant provided to the City. In particular, she referred to the Site Plan which showed the proposed deck set back a distance of 1.68 m along the entire rear lot line (Ex. 2 page 168). Mr. Romano replied that more detailed plans containing dimensions are found in the Deck Plan and Foundation Plan.

45She also questioned Mr. Romano about the greater impact of the deck addition located adjacent to a jog rather than a straight portion of the Lane. Mr. Romano did not agree with Ms. Georgis that the Revised Variances would obstruct sightlines more than an addition as of right.

46Ms. Colin asked Mr. Romano why the deck extension was characterized as an accessory structure, rather than a carport with parking requirements under the ZBL. Mr. Romano replied that Toronto Buildings considered it a platform, not a carport.

47Ms. Colin also expressed concern about overlook to her house from the extended deck. She questioned Mr. Romano with respect to how much of the deck would be open, and how that condition could be enforced.

48As the Panel Member, I asked Mr. Romano if he could identify other decks of a similar height located on or near the rear lot line. Mr. Romano was unable to provide examples of other decks of a similar height in similar proximity to the rear lot line.

B – Modifications proposed by the Owner

49At the beginning of the second day of the hearing, counsel for the Owner proposed three modifications to the Application (the “Modifications”). I reduced the time limit in the Rules, accepted the Modifications and entered the Modifications as the following exhibits:

Ex. 3: Proposed [Rear Yard] Landscaping Plan (Attachment “C”)

Ex. 4: Deck Landscape Plan L-1 (Attachment “D”)

Ex. 5: Photo showing proposed Unenclosed Portion of Deck

50On consent of the City and Ms. Colin, I allowed Mr. Romano to be recalled to describe the Modifications.

51Mr. Romano explained that Ex. 3 showed a strip .56 m in width extending along the westerly edge of the Site along the existing and proposed deck which would be covered in shrubbery, to provide soft landscaping for 11.7% of the rear yard.

52He described Ex. 4 showing a privacy screen to a minimum height of 1.5 m and planters with cedars along the westerly edge of the proposed upper deck.

53Mr. Romano explained Ex. 5, proposing that the northernmost 1.2 m of the west side of the west side of the deck would remain unenclosed, or enclosed with transparent material.

54I then granted the City and Ms. Colin an adjournment to review the new exhibits.

C – Evidence of Ms. Colin

55Following the adjournment, at the request of the Appellant City and with the consent of the Owner/Applicant, I called on Ms. Colin to provide her evidence as a neighbour prior to hearing the evidence of the City.

56I qualified Mr. Michael Barton to give expert evidence as a land use planner on behalf of Ms. Colin. I entered his witness statement as Ex. 6, and his reply witness statement as Ex. 7.

57According to Mr. Barton’s written evidence (prepared before the Modifications were provided and entered as Exhibits), the deck addition was constructed beyond the scope of the 2020 Approval.

58Mr. Barton wrote that the location of the deck extension immediately south of the jog of the lane, and the extent of the encroachment, would considerably obstruct the visibility of vehicles travelling easterly along the Lane for the owner of 70 Alcorn.

59Mr. Barton wrote that the majority of properties along the laneway provide large setbacks where parking is provided, and appropriate setbacks where decks and other structures are located in rear yard areas. He was not aware of any other deck located so close to the Lane. It would not respect the privacy of his client at 70 Alcorn or other neighbouring properties due to its height and reduced setback.

60Mr. Barton opined that the Revised Variances do not maintain the general intent and purpose of the Official Plan with respect to healthy neighbourhood, built form and neighbourhood policies, particularly prevailing patterns of massing, rear and side yard setbacks and landscaped open space.

61He further opined that the existing deck effectively occupies the entire rear yard of the Site, so it does not respect the general intent and purpose of the ZBL, to mitigate the potential for overlook impacts on neighbouring properties. It is not minor, since it does not achieve the cornerstone policy of respecting and reinforcing the prevailing neighbourhood character. It is not desirable since it adversely impacts the character of the laneway in terms of privacy and visibility.

62In his oral evidence, Mr. Barton stated that the Owner/Applicant could construct a deck extension which would provide additional amenity area with less adverse impact on 70 Alcorn, by cutting off the triangular portion of the deck. I asked Mr. Barton to provide a plan showing his proposed cut-off point. Mr. Barton’s proposed cut off point, which TLAB received on July 20, the day following the hearing, will be marked as Exhibit 9 and attached as Attachment “E” to this Decision.

63He expressed concern about the viability of the proposed shrubbery in Ex. 3 due to the existing concrete surface. He was concerned about the lack of detail re cedar plantings in Ex. 4. He preferred a shorter deck rather than the enclosure of the northernmost position with transparent material shown in Ex. 5, since the material could become dirty and obstruct sightlines.

64In response to questions from counsel for the Owner, Mr. Barton agreed there were some second-floor decks, but they did not represent the prevailing condition in the immediate context. He agreed there was not a preponderance of landscaped open space in the immediate neighborhood.

65Mr. Barton agreed that the privacy screen would reduce overlook to his client’s house but stated it would increase massing.

66I then adjourned the hearing to allow the City time to consider the Modifications before providing its planning evidence.

D – Evidence of the City

67On the third day of the hearing, counsel for the City called Mr. Cameron Williamson to provide evidence on behalf of the City. I qualified Mr. Williamson as an expert able to give opinion evidence with respect to land use.

68Mr. Williamson is a City Planner who wrote a Staff Report dated January 10, 2022 recommending refusal of the Revised Variances “in their current form” (Ex. 2 pages 210-212).

69According to Mr. Williamson’s written witness statement (Ex. 8), the Revised Variances should be refused. The rear deck addition encroaches too far into the required rear yard setback, is too close to the rear property line, and will have negative impacts on the views and sightlines for the neighbouring properties, pedestrians and vehicles in the Lane.

70However, Mr. Williamson’s oral evidence, tendered after the provision of the Modifications, changed from his earlier position. It was Mr. Williamson’s evidence that the Revised Variances should now be allowed, providing any approval is subject to the Modifications imposed as conditions.

71Ms. Colin asked Mr. Williamson why he now supported the application, rather than requiring the deck to be shorter.

72Mr. Williamson replied that the conditions, if approved, would address some of the City’s concerns with respect to privacy and sightlines. It was his opinion that cutting off the triangular portion of the deck was going too far, since it would eliminate a portion of the deck already allowed to be built. The City’s position was a compromise with respect to the public realm and private property.

73Mr. Williamson further replied that the Revised Variances, if subject to conditions re landscaping, privacy and transparency, represent good planning.

74As the Panel Member, I asked Mr. Williamson if cutting the length of the deck by a lesser amount than proposed by Mr. Barton would represent better planning than allowing the Revised Variances with the Modifications. Mr. Williamson replied that cutting the northernmost projection of the proposed deck would result in better planning.

75I asked Mr. Williamson to provide a sketch showing the line where he recommended the deck be cut to. Mr. Williamson provided a sketch, superimposed on Ex. 4 (Attachment “D”) showing his proposed cut-off line in red, received by TLAB on July 19, 2023. The sketch will be marked as Exhibit 10 and attached to this Decision as Attachment “F”.

76In re-examination, Counsel for the Owner asked Mr. Williamson to clarify his position with respect to reduction in the length of the encroachment. Mr. Williamson stated that he supported the Revised Variances with Modifications as conditions without any cut-back in length.

77I also asked if Mr. Williamson could explain the discrepancy in the length of the encroachment granted in the 2020 Decision (2.9 m) with the length allowed in the 2023 Decision (6.93 m). Counsel for the Owner advised he would call Mr. Romano to give reply evidence on this issue.

E - Reply Evidence of Mr. Romano

78Mr. Kemerer recalled Mr. Romano to explain the discrepancy in the length of the encroachment over the rear yard setback between the 2020 and 2023 Approvals.

79Mr. Romano explained the discrepancy was due to the trapezoid shape of the Site. The zoning notice preceding the 2020 Approval calculated the rear or northern lot line only to the very small portion (.56 m) parallel to the south lot line shown on the Survey. Subsequent zoning examinations calculated the rear lot line to the mid-point of the longer diagonal portion of the northern lot line on the Survey.

80Since the rear lot line is now measured along a diagonal line, the deck appears closer to the rear lot line. Consequently, a deck of the same configuration as that approved previously will now encroach further into the required 7.5 m rear yard setback.

ISSUES AND ANALYSIS

A – Submissions of the Parties

81The Owner submits that I should approve the Revised Variances with the Modifications imposed as conditions, for the following reasons: the plans for the deck are substantially the same as those allowed by the 2020 Approval; a fence or garage could be built as of right in the same location as the proposed deck; and the Application meets the tests set out in the Planning Act; and the Modifications meet the objections of the City and Ms. Colin.

82After reviewing the Modifications, the City now agrees that that the Application should be approved, providing the Modifications are imposed as conditions.

83Ms. Colin submits that the Application does not meet the four tests despite the Modifications.

B - Landscaping and Height Variances

84I agree with position of the Owner, modified by the submission of Ex. 3, with respect to Revised Variance 1 concerning soft landscaping. Mr. Romano’s oral evidence and photos, and my site visit, confirm that there is little or no soft landscaping in the rear yards of the majority of the lots in the immediate context of the Site. The requested variance of 11.3 % of the rear yard, as shown on Ex. 3, when a minimum of 25 % is required but is rarely provided on lots backing on the Lane, meets or surpasses the prevailing condition with respect to rear yard soft landscaping in this neighbourhood.

85I also prefer the position of the Owner to that of Ms. Colin with respect to Revised Variance 3 concerning the height of the deck extension. As Mr. Romano points out, the 2020 Approval allows an altered rear deck 3.67 m above the ground. The proposed deck is shown as 3.646 m above grade – a very small reduction from that which was previously approved.

86Mr. Barton expressed concern about the fact that the Owner has a parking space in a below grade integral garage facing Alcorn, and the reason for the height variance is to allow parking for a second vehicle at grade below the proposed deck extension. However, the ZBL does not currently restrict the number of parking spaces which may be provided in an R zone, and the zoning examiner did not identify any issues or concerns with the continuing provision of one parking space at the rear of the Site. The height variance was previously approved and was not appealed.

C - Deck Encroachment Allowed by 2020 Decision is Unclear

87I have reviewed the plans submitted by the Owner prior to the 2020 Decision (Ex. 2, pages 167-176). I agree with Mr. Romano that there are conflicts among the plans.

88The Site Plan shows a distance of 1.68 m between the northernmost extension of the deck and the entire north lot line, and a proposed deck addition of 18.09 square metres. The Deck Foundation Plan (Ex. 2 at p. 171) and Deck Plan (Ex. 2 at p. 172) show foundation posts and a deck addition virtually on the lot line.

89According to the Order (Ex. 2 page 177), the rear yard setback does not meet the required setback of 1.68 m.

90The plans submitted following the Order (Ex. 2, pages 178-189) show a larger deck closer to the rear (north) lot line than 1.68 m. According to the Foundation Plan, Pier Plan and Deck Plan (Ex. 2, pages 183-185), the deck and foundation structure is located virtually on the lot line. According to the Survey (Attachment “A”), the deck addition area has increased to 20.85 sm.

91According to the Deck Overlay Plan (Ex. 2, page 190), the proposed deck is closer to the northernmost corner of the lot than the previous Site Plan, and closer to the northeast corner of the deck than the previous Deck Plan.

92I find that exact length of the encroachment of the deck into the rear yard setback allowed by the 2020 Approval is unclear. This uncertainty results from the unusual shape of the lot, inconsistent calculations by various zoning examiners, and conflicting plans submitted by the Owner.

93Since I find that the 2020 Approval is unclear, I do not find I must automatically approve the Application on the basis that it complies with the 2020 Decision. However, I find that I should take the fact the 2020 Approval granted an increase in the encroachment over that permitted by the ZBL into account as a factor in my decision.

94Ms. Georgis and Mr. Romano both referred to a previous fence located on the

north diagonal property line of the Site. I do not find Ms. Georgis’ evidence on this point persuasive, since she did not see the fence, and is not an expert in land use planning.

95Nor am I persuaded by Mr. Romano’s evidence concerning the location of a previous fence or potential garage. The Owner is not proposing to build a fence, which is not subject to the Planning Act, and may be subject to other restrictions with respect to height and permeability. Nor is the owner proposing to build a garage, which is subject to other provisions with respect to height and use. Consequently, I do not agree that I should approve the Application on the basis that a fence or garage could be built as of right on the property line of the Site.

D – Reduced Deck Encroachment

96The key issue in this appeal is Revised Variance 2 – the extent to which the deck should be allowed to encroach into the rear yard setback of 7.5 m.

97This issue is complicated by a number of factors. The trapezoid shape of the lot makes the calculation of the rear yard setback challenging - even for City zoning examiners. The location of the Site backing on to a jog in the lane adds to the impact of the length of the deck.

98The Owner showed some sensitivity to the impact of the encroachment on 70 Alcorn by submitting a Rear Yard Landscape Plan which adds a privacy fence and cedar plantings to the west side of the proposed deck (Ex. 3 and Attachment “C”). The Owner also submitted a Deck Landscape Plan which adds privacy screening and deck planting (Ex. 4 and Attachment “D”).

99However, the Owner is proposing a deck which encroaches further into the rear yard setback than allowed by the 2020 Approval; does not comply with the Order; and does not respect and reinforce the prevailing pattern of rear yard setbacks for elevated decks in the immediate context of the Site.

100I have considered Mr. Barton’s proposal, set out in Ex. 9 (Attachment “E”), to cut the length of the west side of the rear deck approximately in half. In my opinion that proposal goes too far, since it would reduce the size of the deck to less than that which was allowed by the intent of the 2020 Decision.

101However, I find that the proposal for a more modest cut-back as drawn by Mr. Williamson and attached in Attachment “F” has planning merit. It would reduce the size of the deck, which Ms. Georgis agreed would reduce the negative impact of sightlines in the Lane. I prefer her evidence as a traffic engineer over that of Mr. Romano, a land use planner, on that issue.

102The cut-back drawn by the City Planner would be broadly consistent with a reduction in the size of the deck extension to the 2020 Approval, although in a different configuration, by cutting back more on the westerly than the easterly side of the deck. It would be more consistent with the prevailing condition of setbacks for elevated rear decks in the lane.

103In conclusion, I find that approving the encroachment with the cut-back to the extent provided by Mr. Williamson is consistent with the intent of the 2020 approval, meets the planning tests for a variance, and addresses the concerns about overlook and privacy raised by Ms. Colin.

104This case required a review of building plans and drawings which extended well beyond the evidence usually considered by TLAB on a variance appeal. I want to thank Mr. Kemerer, Ms. Peer, Ms. Georgis, Mr. Romano, and Mr. Barton for their assistance in this hearing. I also want to commend the helpful and co-operative approach of Ms. Colin, who was the only lay Party appearing in this hearing.

DECISION

105I will allow the appeal of the of the Committee of Adjustment File, 22 1733360 STE 12 MV (A0787/22TEY) in part, as follows:

106I will approve Revised Variances 1 & 3.

107I will approve Revised Variance 2 with the following amendment, which is underlined:

The rear portion of the deck encroaches no more than 6.93 m into the required rear yard setback and is located 0.95 m from the side (east) lot line and 0.44 m from the side (west) lot line, but no portion, including solid posts, shall extend further north than the red line drawn on the Deck Landscape Plan L- 1 dated July 17, 2023 received by TLAB on July 19, 2023. (Attachment “F”)

108Variances 1, 2 and 3 are subject to the following Conditions:

1. The proposed deck shall be built substantially in accordance with the Plans, prepared by Pearson and Pearson received by TLAB on October 12, 2022 (Attachment “B”), except for the portion north of the red line drawn on the Deck Landscape Plan L-1 dated July 17, 2023 received by TLAB on July 19, 2023 (Attachment “F”), which is to remain unbuilt.

2. The proposed landscaping shall be provided substantially in accordance with the Proposed Deck Landscaping Plan prepared by Excalibur CAD Design received by TLAB on July 18, 2023 and shall extend to the northwest boundary of 68 Alcorn Ave. (Attachment “C”)

3. The proposed 1.5m tall privacy screen(s) and planters with cedars shall be provided substantially in accordance with the Deck Landscape Plan L-1 received by TLAB on August 18, 2023 (Attachment “D”), except for the portion of the deck north of the red line drawn on the Deck Landscape Plan L-1 dated July 17, 2023 received by TLAB on July 19, 2023, which is to remain unbuilt.

R. Kanter

Panel Member

Attachment A

Attachment B

Attachment C

Attachment D

Attachment E

Attachment F