Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2023-08-31
21 249590 S53 05 TLAB
21 249591 S45 05 TLAB
21 249592 S45 05 TLAB
Toronto (City) v. Inroads Consultants, 2023 ONTLAB 131
DECISION AND ORDER
Issuance Date:
Thursday, August 31, 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):
City of Toronto
Applicant(s):
Inroads Consultants
Property Address:
210 Maple Leaf Dr.
COA File No.:
21 109405 WET 05 CO (B0014/21EYK),
21 109409 WET 05 MV (A0059/21EYK),
21 109411 WET 05 MV (A0060/21EYK)
TLAB Case File No.:
21 249590 S53 05 TLAB,
21 249591 S45 05 TLAB,
21 249592 S45 05 TLAB
Hearing Date(s):
June 17, 2022, November 3, 4, 2022, February 16, 17, 2023 and July 14, 2023
Decision Delivered By:
TLAB Panel Member S. Makuch
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
City of Toronto
C. McKeich
Applicant
In Roads Consultants
Party (TLAB)
J. Persechini
M. Mazierski
Expert Witness
A. Miley
Expert Witness
J. Benczkowski
Expert Witness
D. Kolominsky
Expert Witness
D. Keimel
INTRODUCTION AND CONTEXT
1This is an appeal by the City of Toronto from a decision of the Committee of Adjustment approving a severance to permit two undersized residential lots and additional variances respecting the setbacks of a proposed dwelling on each of the lots. The variances granted by the Committee, with respect to lot frontages, reduced the required bylaw frontage from 15m to 9.15m for each lot and reduced the minimum lot areas from the required 550 m2 to 355.49m2.
2The City also appealed the side yard variances which reduced the required setbacks from 1.8m to .6m for the interior setbacks and to 1.5m for exterior setbacks. A front yard setback variance was also granted. Certain of the variances granted were subsequently revised, and new notice was provided before the TLAB hearing. The revisions were the result of a required road widening dedication which had not been taken into account in the original decision.
3The City continued to be the only party in opposition at the hearing with respect to all the variances and consent. The revised variances were as follows. The lot frontage variances were amended from 9.15m to 8.6m and 8.71m. A revised front yard setback was also proposed of 7m and 7.32m rather than 8.76m.
THE LEGISLATIVE AND POLICY FRAMEWORK
4Provincial 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’).
5Consent – 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).
6Variance – 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
7Both the proponent and The City presented detailed evidence by excellent land use planners who reached different conclusions. Both planners focused on the issue of the lot width and size and whether the lots created were too small and too narrow. The essential issue was whether the variances for lot frontage and area created lots which respected and reinforced the physical character of the area and thus met the general intent and purpose of the Official Plan under s. 45 of the Planning Act and would thus conform with the Official Plan under s. 51(24).
8The evidence of the proponent’s planner, Mr.Benczkowski, relied on a larger neighbourhood study area than that of the City. That larger area included lands zoned to allow lots with semi-detached dwellings and smaller frontages and areas. Importantly, he also pointed out that there is an area on Maple Leaf Dr. which permits 12 m frontages although the property in question is in an area which requires 15m frontages. In addition, he pointed out that two close by lots at 204 and 206 Maple Leaf Dr. are lots with 8.23m frontages and areas of 250m. These lots are much smaller than those proposed and almost adjacent to 210 Maple Leaf Dr. He also pointed out that there were many larger lots of different sizes. Because of the mix of lot frontages and lot sizes and the zoning bylaw permissions for different lot sizes in the area he concluded that the physical character of the area was one of a mix of lot sizes and frontages and that the addition of two proposed smaller, narrower lots would fit that character. He also pointed out that the front yard setback was not a specified distance but the average of the distances of the setbacks of the dwellings on each side of the lot. The proposed front yard setbacks of the dwellings would meet that requirement in terms of their actual location, but a technical variance was necessary because the road widening would alter the location of the setback on the created lots.
9The City planner, Mr. Kolominsky, as stated, reached the opposite conclusion. He pointed out that the lots at 204 and 206 Maple Leaf Dr. were an anomaly and that there were no other lots on Maple Leaf Dr. as small as those proposed and very few in Mr. Benczkowski’s entire study area and even fewer in his own study area. His study area appropriately excluded part of Mr. Benczkowski’s study area because of that part’s distance, and lack of easy access from 210 Maple Leaf Dr. and because of that part’s different zoning in permitting semi-detached dwellings. Mr. Kolominski’s evidence was that there were virtually no lots on Maple Leaf Dr. as narrow and as small as those proposed, aside from 204 and 206 Maple Leaf Dr. He pointed out that those two lots were lots of record and were granted variances to permit dwellings because of that status. These lots were an exception as there were no other lots of a similar small size and width to contribute to the character of the area. His description of the character of Maple Leaf Dr. was one of wide lots, with generous front yards. His conclusion was that the proposed lots and dwellings would be narrow and small and thus not respect and reinforce that character or the character of the area as he found it.
10Both planners agreed that the front yard setback was not a set a specific distance but that its purpose was to ensure the proposed house would line up with the frontage of existing neighbouring dwellings. It was not disputed that the location of the proposed dwellings would meet that purpose. Moreover, I find on the evidence that the side yard setbacks variances were not a major concern.
ISSUES AND ANALYSIS
11The basic issue in this matter, therefore, is whether the proposed lot widths are too narrow and their sizes too small. A visit to the site and surrounding area confirmed for me the conclusion of Mr. Kolominsky’s evidence that the character of the area surrounding 210 Maple Leaf Dr. is, as Mr. Kolominsky stated, one of large, wide lots and generous front yards. The proposed development will not, as he also stated, respect and reinforce that character. 204 and 206 Maple Leaf Dr. do exist as small narrow lots close to 210 Maple Leaf Dr., but they are an anomaly and appear out of character. There are very few lots, as Mr. Komolinsky demonstrated in his neighbourhood study, similar in lot size or width to those proposed. Only 5% of 668 lots in Mr. Benczkowski’s study area are similar in size to those proposed. They are insufficient in number to define the character of the area. As a result, the variances should not be approved.
12In the absence of the variances, the consent should be refused as the lot created would not conform to the Official Plan. Extensive evidence and argument about the impact of the road widening was not particularly helpful as a width of 9.15 m is not significantly larger than 8.6 or 8.71 and would not have led to a different conclusion on the basis of “fit” with the neighbourhood.
CONCLUSION
13The appeal should be allowed, and the variances and consent refused because the lots created would be too narrow and small to respect and reinforce the character of the area and thus the variances would not meet the general intent of the Official Plan and consent would not conform with it.
DECISION AND ORDER
The appeal is hereby allowed, and the variances and consent refused.
S. Makuch
Panel Member