Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
22 238761 S45 03 TLAB
Himmel (Re), 2023 ONTLAB 133
MOTION DECISION AND ORDER
Issuance Date: September 18, 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): M. HIMMEL
Applicant(s): D. IGELMAN
Property Address: 43 TWENTY FOURTH ST
COA File No.: 21 218404 WET 03 MV (A0496/21EYK)
TLAB Case File No.: 22 238761 S45 03 TLAB
Hearing Date(s): April 11, May 11, 16, June 30, Sept 7, 2023
Decision Delivered By: TLAB Panel Member T. Yao
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Applicant/ Appellant | M. Himmel | C. Kapelos (Ritchie Ketcheson Hart & Biggart, LLP) |
| Participant | Long Branch Neighbourhood Association | J. Gibson |
1Mr. Himmel wishes to tear down his single detached house at 43 Twenty Fourth St (Figure 1) and build a new two storey house. To do so he requests the variances set out in Figure 2. On December 2, 2022, the Committee of Adjustment refused the variances. Because the decision was a refusal, it was appealable to the TLAB under Bill 23, which received Royal Assent on November 28, 2022. That legislation abolished appeals from approvals but not refusals. The appeal, written by his lawyer Ms. Kapelos, stated that his new building would constitute “gentle intensification” and met all the statutory tests.
Figure 1. Present house
[2]
Figure 2. Variances sought for 43 Twenty Fourth St
| Required/Permitted | Proposed | |
|---|---|---|
| 1 | Floor Space Index | 0.35 times the lot area |
| 2 | Interior Side Yard Setback (walls) | .9 m |
| 3 | Eave projection permitted if side yard setback for eaves is met | Eave side yard setback must be 0.3 m from lot line |
THE LEGISLATIVE AND POLICY FRAMEWORK
3The new house must be consistent with the Provincial Policy Statement and conform to the Greater Golden Horseshoe Growth Plan. These Province of Ontario documents must always be considered but they contain a high level of generality and may not have practical application in every case. Many policies deal with non settlement areas, employment lands or infrastructure, which are not applicable to one lot on Twenty Fourth St, and within the City of Toronto. Neither of the two witnesses referred much to Provincial policies in their oral testimony and I find that they do not offer much guidance here.
4The variances must comply with s. 45(1) of the Planning Act and must cumulatively and individually:
maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
be desirable for the appropriate development or use of the land; and
be minor.
Right to develop
5The obligation is on the proponent to demonstrate to the decision-maker that the tests are met on the balance of probabilities; there is no right to a variance.
EVIDENCE
6I heard from only two witnesses, Mr. Igelman for the owner (Mr. Himmel), and Ms. Mercado for the Long Branch Neighbourhood Association. I qualified Mr. Igelman as able to give opinion evidence in land use planning.
ISSUES AND ANALYSIS
7The proposal must maintain the general intent and purpose of the Official Plan, particularly the key provision 4.1.51, requiring that the density of near residential properties be “respected and reinforced”.
8In justification of a density variance of 0.63 (0.35 permitted), Mr. Igelman pointed to 108 Committee of Adjustment decisions out of 911 total properties in which the mean granted FSI was 0.68. In contrast, Ms. Mercado used a smaller neighbourhood, in which 19 out of 29 were of a density of 0.35 or less. In particular she noted there are different standards for semis, duplexes and triplexes.
9The zoning of the property is RM, u4 x2. RM permits single detached, duplexes and higher, with a maximum of 4 dwelling units per lot Ms. Mercado disagreed with the inclusion of zones where the permitted ceiling is higher than 0.35. I agree that it is inappropriate to include these properties.
10This leaves a large RD zone at the top and an RM zone on the bottom (Figure 3, next page), where the subject property (star) is located. RD permits only single detached, whereas RM permits the full range of housing including duplexes, semis, triplexes etc. For both zones a single detached home is subject to the same frontage, lot area and FSI standards; that is, a detached house must have an FSI less than 0.35, whether in the RD or RM.
11I agree that a neighbourhood that is sprinkled with legal semis and duplexes, where the semi’s FSI may be as high as 0.60 is likely different from one that is a sea of detached houses all with an FSI of 0.35. Accordingly, Ms. Gibson sought to cross examine Mr. Igelman on this issue.
Figure 3. Portion of Igelman geographic are with zoning restrictions added
12However, Ms. Gibson’s attempt was rebuffed. When she asked Mr. Igelman about the composition of dwelling types in his geographic neighbourhood, Ms. Kapelos directed him not to answer the question. Her justification was that her client was not seeking a variance from dwelling type, so, this cross examination was irrelevant. Ms. Gibson stated that this line of inquiry was relevant, for example, in the determination of the massing, scale, and density of nearby residential properties.
13TLAB proceedings do not have a separate discovery or pleadings process although the exchange of witness statements partly fulfils this function. The Courts (Justice Perrell in the Deloitte case) suggest the key principle is whether the question asked is relevant to the proceeding.2
14In his witness statement, Mr. Igelman states concluded the character of his broader neighbourhood is eclectic”; and then went on to draw certain conclusions based on this eclectic character.3 It is not permissible to venture a conclusion and refuse to be cross examined on how that conclusion was reached.
15In the Deloitte case Justice Perrell went further and noted that the Court’s Rules of Civil Procedure require that an expert’s findings must comply with the applicable Rule on expert opinions. It is only by undertaking not to call the expert can one shield the expert from questioning. 4
16Mr. Igelman has also undertaken to provide non-partisan evidence in accordance with the TLAB rules on expert witnesses — Ms. Kapelos’ intervention has defeated the purpose of this rule. Ms. Kapelos might say I should have given her a second chance to let the planner respond, and based on the answer given, explained how such answer would not assist the TLAB. But she did not do that. It is not my obligation to explain to counsel the risks of any particular trial tactic.
17At the end of the day, it is Mr. Himmel’s obligation to justify compliance with the tests and 4.5.1, whether the neighbourhood’s character is respected and reinforced. Accordingly, I reject any conclusion that Ms. Kapelos wishes to draw from Mr. Igelman’s testimony as to the appropriate geographic neighbourhood and inferences therefrom about its character. Therefore, the proponent has failed to demonstrate Official Plan compliance.
Design Guidelines
18I now go on to consider the Design Guidelines. These are a Council approved document intended as a tool for “builders” and “decision makers” in Long Branch. It is unique in the City of Toronto; no other neighbourhood has anything like this. It is not a Secondary Plan and has not been legislatively placed in the Official Plan under the Planning Act, where it could be appealed to Ontario Land Tribunal. It is agreed that the property is in the geographic area that is subject to the Guidelines.
19Mr. Igelman took two positions:
That the Guidelines have been met, as evidenced by the “checklist” submitted to the Committee of Adjustment; and
As it is only a Council-approved document; not either explicitly adopted as either OP or zoning, compliance is “not required”. (Please see Footnote 8, next page quoting Mr. Igelman’s Witness Statement)
20The TLAB has rejected the argument that the Guidelines should not be admitted as evidence5 and s. 45(1) refers to the “intent” of the document. It is accepted that the intent of a legislative document (i.e., the Guidelines) can be ascertained by ‘non-legislative statements of purpose”,6 and the guidelines contain many statements explaining the purpose of the guidelines.7
21I turn now to the first bullet. Mr. Igelman’s witness statement on this topic is largely reproduced in Footnote 8 below: He says is that there is a “high quality of design”, including a connection between the windows and the public realm.8 Recently, the Committee of Adjustment has required that Long Branch applicants produce a Guidelines “checklist”, which in this case was filled in by the architect, presumably Mr. Arsenault. I found that Mr. Arsenault took his task seriously, for example, s. 3.3.3 on windows, the performance standard requests him to consider window designs that are “respectful of the balance and rhythm of sold and glazed surfaces of buildings along the street”, paying attention to the “scale”, “reference lines’”, rhythm” and “privacy”. Mr. Arsenault has responded “Windows are punch window design. Ratio of window to solid appears to be similar to adjacent properties.” However, neither Mr. Igelman nor Ms. Kapelos took me through Mr. Arsenault’s written explanation, nor was Mr. Arsenault called, so I put the “checklist” aside. Instead, Ms. Kapelos made four arguments, which I now consider.
Ms. Kapelos’ four arguments
22Ms. Kapelos interpreted LBNA’s opposition to be based mainly on “a two stories above integral garage” design. This is a common type of design for 25 foot lots but this exact characterization is not used by the Guideline’s authors, although in more than one instance it is depicted in pictures as an “incompatible” design.
23Her first argument is that there are “countless” examples of other two stories over garage designs, although I would put it at about 30, with three or four on Twenty Fourth St. She appears to have based the “countless” estimate on her own review of Mr. Igelman’s photo array. I note that that she did not particularize any examples as being 25-foot lots with a mutual drive and being approved after January 2018, and as a result it is difficult to draw conclusions. January 2018 is the date the Guidelines received Council approval.
Figure 4. Some of Ms. Kapelos’ comparables (Source Igelman photo array)
24The Guidelines ask for a comparison with adjacent properties, the “street” and the “block segment”9. In Figure 5 above, I have reproduced some of her comparables. 10 Numbers 84 and 95 do constitute pairs of houses with the impugned design, but number 84 has a 2010 Committee of Adjustment file number and number 95 does not appear in Mr. Igelman’s spreadsheet at all. I conclude both likely predate the January 2018 date for the Guidelines. In any event it is the obligation of the proponent to provide full information
25The other two properties #21 and 68 have 2022 and 2019 decision dates. However, neither is a two storey plus integral garage design and as a result, I accept Ms. Gibson’s submission that this would be the first such design, post-January 2018 and as such be an “inflection point” for this street and block segment.
Figure 5. Arsenault streetscape, marked up by Ms. Mercado
Moving to the Guidelines’ request that the decision maker consider the “adjacent” properties, Figure 6 above is a streetscape prepared by Mr. Arsenault, the architect. Number 43 Twenty Fourth as proposed by Mr. Himmel is the 3rd building from the left.
26Ms. Mercado’s markings are intended to show that this portion of the block, including the two adjacent properties, have horizontally oriented windows, generally wider and more ground related than what is proposed. I find that the proposed design ignores reference lines and is contrary to the street’s rhythm.
27I now consider the second and third Kapelos propositions. She asked me to accept Mr. Igelman’s assertion that the two storey over integral design was technically a two storey building, based on zoning definitions. This is true. However, this does not mean that the Guidelines are respected. She also asked me to accept that two stories above a garage are better than one storey because there can be two vantage points for “eyes on the street”. This is an argument raised by Ms. Kapelos in submissions alone, but not connected to the planning evidence. I do not accept it.
28I now consider the fourth and final proposition: that the garage is not a “prominent feature”. I find that it is a prominent. Even the proponent’s architect seems to accept this is a challenge to consider (“Proposed is designed with variation in the massing to mitigate the integrated garage.”)
29The integral garage must be considered in connection with the driveway. At present, both 43 and 45 Twenty Fourth St residents appear to use a front parking pad (Photo Figure 1) and a rear yard photo shows at least three cars in a row in in the two rear yards. So, the rear driveway surfaces, already built will be discarded in favour of an angled driveway; this was most likely lengthened to make it easier to use the driveway for parking cars without overhanging the sidewalk. This is discouraged by the Guidelines.11
Figure 6. First and second driveway designs
30This is the second iteration of the driveway design. The first is shown in Figure 6, left, above. It shows the front wall was initially aligned with the adjacent properties. The proposal was supported by an arborist report recommending that the City owned fir be removed and replaced by a 60 mm (2.36 inches diameter) gingko, to be planted on the boulevard.12 Urban Forestry wrote that a permit for injury or removal of the fir might be denied, whether or not the variances were granted. The second version, in which the front façade is set farther from the street, creates a “discrepancy which breaks the rhythm of the street” according to the Guidelines (p 41).
31Ms. Mercado testified that she listened to the tape of the Committee of Adjustment hearing, and it was this issue (removal of the rear garage and creation of new driveway and integral garage) that was of greatest concern to the Committee members. I share those concerns.
32Inserting the volume of a garage into the house expands the total bulk and relegates the day-to-day living space at the rear. There is no room for a first floor living room, nor a first-floor window so it must be placed over the garage. Since the design has a “split level” front-to-back, the bedroom windows become an apparent third floor, out of character for this area. Ms. Mercado wrote:
- The fact is two storeys above a garage do not occur in the immediate context in single detached houses at .63 FSI on a 7.62m lot of record. Exceptions exist but are listed as examples of incompatibility in the Guidelines and are the very reason these Guidelines exist.
33In my view the two stories over garage solution introduces the following departures from the author’s objectives and guidelines:
Front entrance and ground floor height inconsistent with adjacent properties (p 44)
Windows heights do not generally reflect adjacent reference lines (p 53)
Pitched front door roof over front door (p 51)
No main windows on the ground floor (p 60).
34I now wish to briefly comment on how to assess “compliance” with the Guidelines. It is a fact that much of the character of Long Branch consists of buildings built in the first wave of urbanization decades ago and it is unrealistic to expect contemporary owners will be satisfied with these smaller, less dense buildings. Ms. Mercado used the analogy of a “bulls’ eye”, meaning that perfection is not to be expected, but that as many elements in the checklist as possible should be respected. Some of the purely design elements, such as reference lines, would seem to me to be achievable by any sensitive façade. Others such as avoidance of the two storey plus integral garage are more difficult, given this owner’s instructions. Mr. Himmel started with what is in effect a 21 foot wide lot, not a 25 foot lot once the mutual driveway is taken into account. Its limitations were obvious. He took the risk that his final design might not meet many of the Guidelines’ objectives.
35In my view the Guidelines are useful in two ways:
First they help determine whether the proposed design respects and reinforces the prevailing “massing, scale and density of nearby residential properties”. This is a more detailed and rigorous inquiry into 4.1.5 that would have to be done, whether or not the property is in Long Branch.
Second, in the case of a variance application, the Guidelines help in determining whether the variance is desirable and minor. If the owner produced an outstanding design that was close to the “bull’s eye”, the 0.63 FSI could still be considered desirable and minor notwithstanding it is numerically large.
36But in my opinion the design does not come close to the bull’s eye, and so the proponent has failed to demonstrate that the FSI variance requested maintains the intent of the Official Plan and zoning by-law, is minor and desirable for the appropriate development of the land.
DECISION AND ORDER
37The variances are not authorized.
T. Yao
Panel Member
c. prevailing heights, massing, scale, density and dwelling type of nearby residential properties; d. prevailing location, design and elevations relative to the grade of driveways and garages; . . . f. prevailing patterns of rear and side yard setbacks and landscaped open space; g. continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood; and h. conservation of heritage buildings, structures and landscapes. (I have bolded the characteristics that were most discussed in the evidence.)
Expert Opinions 31.06 (3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that are relevant to a matter in issue in the action and of the expert’s name and address, . . .[except when the expert is not to be called at trial.]
In 80 Thirty Ninth St (June 4, 2021), Member Makuch said: “In Mr. Romano’s [i.e., proponent’s planner] opinion the Guidelines do not apply but, in any event, the proposal met them.. . . . I find the Guidelines are useful, not only because they clearly indicate the general intent of the zoning bylaw but also because the proponents accepted their applicability by amending the proposal to meet them. . . . In conclusion, based on my observations on the suggestion in the [Guidelines] and the magnitude of the frontage variance (12 m to 7.72 m), I find that the frontage variances do not maintain the general intent and purpose of the zoning bylaw.”
i.The Long Branch Neighbourhood Character Guidelines are often referenced in minor variance hearings. However, there is a considerable degree of misinformation surrounding this document. First, it is a guideline document and does not carry with it the significance or status a policy document or even a Zoning By-law. Second, it is a guideline that is not referenced in any policy document. As mentioned earlier, I have reviewed the Long Branch Neighbourhood Character Guidelines and I have satisfied myself that the proposed new dwelling and associated variances satisfy the guidelines. ii.As per Part “1-21” of the Appellant’s Document Disclosure, as well as my own review of the Proposal against the Long Branch Neighbourhood Character Guidelines, I am of the opinion that the Proposal meets and does not conflict with the Guidelines. 143.b) – contribute [the paragraph numbering and grammar is per the original] to a pedestrian scale by providing a high quality of design on building floors adjacent to and visible from the public realm; 144. The Proposal is two-storeys in height and is compliant with the maximum permitted height as per By-law 569-2013. The proposed design of the building façade provides a high quality of design and is similar to existing dwellings along Twenty Fourth Street, as well as other recently redeveloped dwellings within the neighbourhood. 145. The proposed dwelling has been designed in a more modern style with a sloped roof design and can be seen in Part “1-31” of the Appellant’s Document Disclosure. 146. d) – ensure grade relationships that provide direct access and views into and from the public realm.” 147. The Proposal fronts on Twenty Fourth Street which will provide direct access and views into and from Twenty Fourth Street. (Igelman Witness Statement)
- The property in relation to adjacent properties;
- The property in relation to the street and block segment;
- The property in relation to the broader neighbourhood context. (Design Guidelines Jan 18, 2018)
Footnotes
- Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular: . . .
- [65] The case law has developed the following principles about the scope of the questioning on an examination for discovery: The scope of the discovery is defined by the pleadings; discovery questions must be relevant to issues as defined by the pleadings: (citation omitted) CIBC v. Deloitte & Touche, 2013 ONSC 917 at par 65, Justice Perrell)
- 44. The Subject Property is zoned "RM (u4) (x2)” under City Zoning By-law 569-2013 (the “ZBL”). This zoning permits a variety of residential building types on a lot with a maximum number of units of four units and subject to exception zone RM 2. Exception zone RM 2 provides site-specific provisions which relate to the minimum lot area, minimum lot frontage, maximum building height, maximum floor space index, minimum rear yard setback, and minimum side yard setback for certain building types. The Proposal requires two variances to the applicable exception zone RM 2, being the maximum permitted FSI and the minimum required side yard setback. 109. Prevailing Dwelling Type and Scale: The prevailing dwelling type throughout my Study Area varies as the neighbourhood is an eclectic mix of buildings/dwelling types. However, the scale of buildings/dwellings is similar in that most buildings/dwellings are low-rise ground-related residential housing, mainly two storeys in height with mostly sloped roof designs. Minor differences in the scale of dwellings exist in my Study Area between older dwellings and newer replacement dwellings, as well as with larger lots with multi-storey apartment buildings upon such lots, which are larger, but this difference appears consistently throughout my Study Area, as it does in many City neighbourhoods experiencing gentle redevelopment. (Igelman witness statement, pars 44 and 109).
- [113] Moving on, my [this is Justice Perrell speaking] simple response to the Plaintiffs’ position about the findings, opinion, and conclusions of experts engaged by Deloitte is that Deloitte must comply with the rules about the disclosure of the evidence of experts during examinations for discovery. Rule 31.06 (3) governs the matter; it states:
- In 10 Lake Promenade, (April 23, 2019), . “The motion was for a finding that evidence regarding Official Plan Amendment 320 (the OPA) and The Long Branch Neighbourhood Character Guidelines (the Guidelines) should not be admitted into evidence at a hearing respecting a minor variance and consent applications in the Long Branch area. . . There is a legitimate public interest in Council clarifying how the physical character of all neighbourhoods should be evaluated. This is done in the OPA. There is a substantial public interest in providing details for the evaluation of development applications in the Long Branch Neighbourhood. This is done in the Guidelines.” (Member Makuch’s words) The 10 Lake Promenade decision was upheld on review by Chair Lombardi on June 17, 2019.
- §9.48 Non-legislative statements of purpose. The reports of Law Reform Commissions, Parliamentary Commissions and other similar studies have long been admissible as evidence of the mischief or evil that legislation was designed to overcome. Courts now also accept these and comparable sources as direct evidence of legislative purpose. Statements made about a statute in the legislature, especially by Ministers introducing or defending it, are admissible and may be considered sufficiently reliable to serve as direct or indirect evidence of legislative purpose. In Re Application under s. 83.28 of the Criminal Code, Iacobucci J. relied not only on the preamble to the amending Act, but also on Parliamentary debates and on notes presented before the Committees considering the proposed legislation in the House and the Senate, to determine the purpose of the Act and of s. 83.28 in particular, Statements issued by government departments or agencies involved in the development or administration of legislation may also be looked at. In the case of delegated legislation, descriptions of purpose prepared by government ministries have been received by the courts. (Sullivan on the Construction of Statutes, 6th Ed., Ruth Sullivan)
- E.g., “The Guidelines serve as input to the Toronto Committee of Adjustment and the [Ontario Land Tribunal] / Toronto Local Appeal Body to assist in the review and evaluation of development applications.” (p 10) and “The objective of the Guidelines is to identify the neighbourhood's key character-defining qualities, and to ensure that future developments are designed in a manner which is contextually-sensitive and responsive to the neighbourhood character in keeping with policy 4.1.5 of the City's Official Plan.” (Guidelines, p 1)
- Mr. Igelman’s entire written commentary is as follows:” In addition to the above-noted documents and instruments, I also reviewed the Long Branch Neighbourhood Character Guidelines. Although these guidelines have not been empowered by Council as policy and therefore are not required to be satisfied when assessing a planning act application, these guidelines are sometimes referred to in minor variance hearings for the Long Branch Area. For that reason, I have reviewed the guidelines against this application, but do not rely upon them in forming my opinion. (Igelman Witness Statement, par 44) . . .
- . . . to ensure that future developments are designed in a manner which is contextually sensitive and responsive to the neighbourhood character in keeping with policy 4.1.5 of the City's Official Plan. In order to accomplish this objective, the Guidelines incorporate a design methodology which evaluates future development at three concentric scales, including:
- Ms. Kapelos mentioned “21” Twenty Fourth”. This appears to be an error. I have substituted number 25 as being the most likely address she meant. Mr. Igelman’s spreadsheet lists ten Committee of Adjustment decisions. #100 was refused and not appealed. #111 does not involve an FSI variance. The others do. #18 was a COA decision granting 0.68 but with a complex history and can be regarded as still unresolved. The remaining decisions are prior to January 2018.
- Consider driveway consolidation, between adjacent properties, where feasible. In these circumstances, front yard parking pads are discouraged.
- Tree #1 is a city owned 33cm Green fir (Abies concolor), located directly in front of home. Tree is not aesthetically pleasing and is an inappropriate species for the urban environment, particularly for this location. Tree has damaged, suppressed and altered crown shape. Tree does not have natural form. Tree has relatively small asymmetrical crown and contributes little value to property and environment. [It] will likely be removed at some time, exposing tree to winds. Tree will likely not have longevity. We request permit to remove tree. Tree will be replaced with a 60mm Ginkgo (Ginkgo biloba), planted on boulevard in similar location.