Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
2023-09-19
23 152688 S45 14 TLAB
Candia (Re), 2023 ONTLAB 135
DECISION AND ORDER
Issuance Date:
September 19, 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):
G. CANDIA
Applicant(s):
I. AMIRI
Property Address:
4 BERTMOUNT AVE
COA File No.:
23 105783 STE 14 MV (A0078/23TEY)
TLAB Case File No.:
23 152688 S45 14 TLAB
Hearing Date(s):
September 11, 2023
Decision Delivered By:
TLAB Chair D. Lombardi
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
G. Candia
M. Barton
Applicant
I. Amiri
INTRODUCTION AND CONTEXT
1This is an Appeal of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for two variances for the property known as 4 Bertmount Avenue (subject property).
2The purpose of the application is to legalize and maintain the rear third-storey addition which was constructed without an authorized building permit, and to permit the external fire escape stairs on the north side of the existing three-storey detached dwelling.
3The subject property is located on the west side of Bertmount Avenue and is the first residential lot north of the Queen Street East mixed-use corridor.
4It is designated ‘Neighbourhoods’ in the City Official Plan (OP) and zoned R (d0.6) (x809) under Zoning By-law 569-2013.
5REQUESTED VARIANCES TO THE ZONING BY-LAW
- Chapter 10.10.40.40.(2)(A), By-law 569-2013
Additions to the rear of a detached house erected before October 15, 1953, are permitted provided the residential floor space index of the dwelling, as enlarged, does not exceed 0.69 times the area of the lot (117.3 m2).
The altered dwelling has a floor space index equal to 1.51 times the area of the lot (256.7 m2).
- Chapter 10.5.40.60.(3)(A)(iii), By-law 569-2013
Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6 m.
The fire escape stairs are located 0 m from the side (north) lot line.
6Gustavo Candia, the owner of the subject property, appealed the decision of the COA to the Toronto Local Appeal Body (TLAB) and the TLAB set a Hearing date for September 11, 2023, to hear the appeal.
7The only attendees at the Hearing were Mr. Candia and his expert planning witness, Michael Barton (MB1 Development Consultants Inc.).
8I advised those at the Hearing that I had attended at the site, familiarized myself with the surrounding area and reviewed all of the pre-filed materials in preparation for the hearing of evidence.
THE LEGISLATIVE AND POLICY FRAMEWORK
9Provincial 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 (Growth Plan) for the subject area.
10Variance – 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
11Before hearing from Mr. Barton, I asked Mr. Candia a series of questions, under oath, as the owner of the subject property to ascertain the circumstances surrounding the two variances being sought.
12Mr. Candia confirmed that prior to the construction of the rear third-storey addition/extension (addition), without authorization, the existing dwelling had a partial third storey and that the exterior fire escape and stairs on the north side of the building were already in place at least since 2016 and prior to purchasing the property in 2019.
13He stated that in 2021 he retained a contractor to undertake remedial work on the existing third-floor roof. As part of this work, the contractor advised Mr. Candia of “previously existing building permit and variance approvals”1 for the third floor and on this basis, Mr. Candia agreed to the construction of the third-floor addition which is the subject of this Appeal.
14The City became aware of this unauthorized construction and on July 27, 2022, issued Mr. Candia with an Order to Comply regarding the extension of the rear third floor “without permits.”2 As a result, Mr./ Candia filed an application for two variances with the COA, which the Committee refused.
15I then heard from Mr. Barton whom I qualified as able to provide expert opinion evidence in the area of land use planning.
16In describing the subject property, he noted that it is occupied by a 3-storey single detached residential dwelling with a ground-level rear yard deck. The dwelling has a front yard setback from Bertmount Avenue of 3.18 m from the main wall face and there is an existing porch and second floor front balcony.
17He confirmed that the front yard setbacks to the main wall and porch are consistent with the existing dwellings to the north on the west side of Bertmount Avenue.
18Mr. Barton also confirmed that prior to the partial third-floor addition (constructed as an extension) of the previously existing third floor, the dwelling had a floor space index of 1.39 times the area of the lot, which represents a legal non-conforming condition relative to the ‘as-of-right’ permissions under the Zoning By-law.
19In paragraph 14 of his Expert Witness Statement (Exhibit 2), he asserts that a building permit was issued for the subject dwelling in 1988 confirming the legally recognized floor areas prior to the construction of the rear third floor addition.3
20He submitted that calculating the total floor area ratio using the total floor area (237 m2) and lot area of the subject property (169.98 m2) results in a floor space index (FSI) of 1.39 times the area of the lot.
21This, he contends, represents the legally recognized existing built form on the subject property.
Proposal
22The variance application was submitted to allow the Owner of the subject property to maintain the rear third-floor addition, as constructed, and the existing stairs and platform on the north side of the dwelling (Graphic 1 below).
Graphic #1: “As-built” North Elevation with Third-floor Addition & External Stairs
23Mr. Barton submitted that the following points are relevant in considering the two variances sought:
The 19.7 m2 rear third-floor addition/extension increases the floor area by 8% to 256.7 m2 and increases the FSI from 1.39 to 1.51 times the area of the lot.
The addition/extension includes only the floor area previously located above the second floor to the rear of the limits of the pre-existing third-floor level.
The setbacks to the main rear and side walls that existed prior to the completion of the addition/extension have been maintained.
The maximum height of the addition is consistent with the maximum height of the balance of the dwelling and is lower than the maximum permitted as-of-right permitted height.
There have been no changes to the front of the dwelling and its relationship to the public realm.
The additional floor area on the third floor is located at the rear adjacent to the laneway servicing the mixed-use properties along Queen Street East.
The rear wall of the dwelling, including the third-floor addition, aligns with the rear wall of the abutting property at 6 Bertmount Avenue.
No variances are required for building height, setbacks, or lot coverage.
24In addressing the FSI being sought by the Applicant, he highlighted for comparison, the floor area calculations for the existing dwelling with and without the basement level. In doing so, he clarified that the floor area of the basement level was included in the calculation due to the finished floor elevation of the basement being closer to established grade than the main floor which he noted is typical in this neighbourhood.
25If the basement floor area is removed from this calculation, then the overall floor area decreases from 256.7 m2 to 193.25 m2 and a corresponding reduction in the FSI from 1.51 to 1.14 times the area of the lot.
26Mr. Barton identified a geographic area for which he analyzed property data and previous COA decisions. In addition, his maps (Exhibit 2, pdf page 303) mark an area with a dark red line consisting of both sides of the block of Bertmount Avenue where the subject property is located (Graphic #2). This area, shown in the diagram below, would be consistent with the directions of OP Policy 4.1.5 for identifying the immediate context and for assessing neighbourhood character.
Graphic #2: Immediate Context for 4 Bertmount Avenue
27He opined that the broader context is characterized by a mix of 2, 2.5, and 3-storey single, semi-detached, and townhouse dwellings with a wide range of dwelling heights, lengths and floor areas although dwellings of full three storeys in height exist in substantial numbers in the neighbourhood and reflect both the existing and planned context.
28The data set he analyzed includes thirty-eight (38) COA variance approvals for the maximum permitted FSI ranging from 0.69 to 1.55 times the area of the lot. When that analysis considered only 2.5 and 3-storey dwellings, similar to the as-built dwelling on the subject property, the range of FSIs is 0.75 to 1.55 x.
29He asserted that this analysis confirms that variances to the maximum FSI are relatively common in the broader context and include approvals up to 1.55 times the area of the lot.
30In reviewing the Immediate Context, Mr. Barton analyzed one-hundred-and-nineteen (119) residential properties, including sixty-four (64) lots on the west side of Bertmount Avenue and fifty-five (55) lots on the east side.
31He determined that there were thirteen (13) variance approvals since 2008, of which seven (7) were for 2.5 and 3-storey dwellings and approvals for FSIs ranged from 0.72 to 1.55 x.
32He opined that the legal ‘as-built’ dwelling on the subject property with an FSI of 1.39 x is already at the high end of this range but that it represents the existing context, and that the proposed FSI of 1.51 x will remain within the range of FSI approvals in the Broader Context.
33He further opined that there are significant differences between the Broader and Immediate neighbourhood contexts as follows:
i. In the Immediate Context, lots fronting Bertmount Avenue are of relatively consistent length, depth and area with uniform alignments and configurations to the street whereas the Broader context is characterized by significant variability in these criteria.
ii. Lots on the west side of Bertmount Avenue have consistent rear yard setbacks and open space characteristics whereas rear yard setbacks and open spaces are varied in the Broader Context due to significant differences in building footprints and lot sizes/configurations.
iii. There is consistency in front yard setbacks and building orientation to the street in the Immediate Context which provides a harmonious and uniform street edge and built-form presence along Bertmount Avenue.
34Mr. Barton concluded that these points are particularly important considerations in an application where variances for maximum FSI and minimum side yard setbacks are requested.
35He noted that Community Planning Staff did not provide a recommendation or Staff Report to the COA and no other City Staff provided reports, recommendations, or conditions regarding the subject Application.
36Furthermore, Mr. Barton confirmed that no letters of objection were received from members of the public in opposition to the Application. He did, however, file a letter from the abutting homeowner of 6 Bertmount Avenue in support of retaining the existing exterior stairs that are the subject of Variance No. 2. I marked this as Exhibit 3 at the Hearing.
ISSUES AND ANALYSIS
37This case turns on whether Mr. Candia has met the onus on him to justify each of the four statutory tests, as there is no ‘right’ to a variance.
38In a building without a permit situation, my approach is to treat the illegal construction as immaterial for planning purposes. The Zoning By-law makes reasonable accommodations for conditions which do not reflect the provisions of the By-law but have existed for some time.
39The rule for an after-the-fact application is to consider it as if the building is not built. So, the authorization of the variances requested in this type of situation should not be to spare the owner the cost of fixing the construction, nor should an otherwise meritorious variance(s) be withheld simply to punish the owner.
40The owner is neither penalized nor given extra latitude. This has been followed in other TLAB cases and I’ve adopted this approach in this decision.
41Therefore, the variances must meet all the four tests under s. 45(1) of the Planning Act.
42I accept Mr. Barton’s evidence that the proposal and requested variances for the subject property are consistent with the 2020 Provincial Policy Statement and conform to the Growth Plan for the Greater Golden Horseshoe and that these Provincial policy documents are relevant to more significant growth and intensification proposals than an addition/extension to an existing single detached dwelling.
OFFICIAL PLAN
43Mr. Barton provided an analysis of applicable Official Plan policies relevant to the proposal including OP Policies 2.3.1 (Healthy Neighbourhoods), 3.1.3 (Built Form), and 4.1.5 (Development Criteria in Neighbourhoods).
44These policies confirm that change in Neighbourhoods is to be stable but not static and that development will respect and reinforce the existing physical character and be located and massed to ‘fit’ within the existing and planned context.
45He focused his analysis on OP Policy 4.1.5, which he submitted contains within it development criteria that are intended to give greater specificity regarding the expectations for development in Neighbourhoods.
46Of the criteria set out in Policy 4.1.5, I consider criteria c) d), and g) to warrant further discussion in relation to the variances sought for FSI and encroachment of the existing fire escape stairs into the side yard setback.
c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties;
d) prevailing building type(s);
g) prevailing patterns of rear and side yard setbacks and landscaped open space.
47In coming to grips with OP Policy 4.1.5 c), which references prevailing height, massing, scale, density and dwelling type, there are certain aspects which can be described using metrics – overall height in metres and FSI. Dwelling type is easily described. The consideration of massing and scale, however, relies on an understanding of proportion and balance in relation to the surrounding context.
48I concur with Mr. Barton that the existing maximum height of the existing dwelling is maintained through the rear addition and forms part of and is consistent with the neighbourhood character of the immediate area of 2 and 3-storey dwellings.
49I also agree that the proposed density (FSI) corresponds to a 3-storey dwelling built form that exists in substantial numbers and has a significant presence in the Immediate Context.
50I find that the requested variances and the additional density and massing of the third-floor addition accommodated at the rear of the dwelling represent an expansion of the existing condition and remain compatible with properties within the neighbourhood.
51The existing building height, length, depth, and setbacks will be maintained with only an 8% increase in the floor area and FSI which will only be visible from the abutting laneway, mixed-use properties on Queen Street East.
52On the basis of the record of previous approvals for FSI submitted by Mr. Barton and the photographic evidence provided, I am satisfied that the massing of the proposal with the third-storey addition and the encroachment of the fire escape stairs within the north side yard setback respect the prevailing physical character of the neighbourhood and the Immediate Context.
ZONING BY-LAW
53Mr. Barton’s evidence was that the general intent and purpose of the Zoning By-law performance standards and regulations are intended to ensure that a development proposal is compatible with the physical character of the established neighbourhood and results in land use and built form that is appropriate and harmonious within its existing and planned context.
54The provisions in the Zoning By-law do not work in isolation, however. The intent and purpose of the FSI maximum in the By-law, for which there is a variance requested, is to assert an additional level of control beyond that which is provided by the By-law building envelope parameters – height, length, depth, and rear, front and side yard setbacks.
55The purpose of the FSI maximum in the By-law is to regulate the total amount of development on the site and prevent “overdevelopment” on a lot, even if development otherwise meets all the setback requirements. In the language of the governing OP, the overall proposal should reflect the prevailing massing and density (amongst other features) of the neighbourhood.
56The Applicant relies on the premise that the building envelope defined by the By-law provides the frame of permissible development and that, therefore, the proposal, which is within the building envelope, does not constitute overdevelopment of the site.
57For the reasons outlined in my analysis below, I find that the evidence that has been submitted by the Applicant is sufficient to find that the proposal meets the general intent and purpose of the Zoning By-law.
58The third-floor rear addition/extension and external side stairs do not change the appearance of the dwelling from the perspective of views from the public realm. The additional floor area is also only visible from the abutting laneway to the south (see Photo below) and the neighbouring property at 6 Bertmount Avenue.
Laneway between 4 Bertmount and Mixed-use Properties on Queen Street
59Additionally, the alignment of the rear wall of the existing dwelling on the subject property is maintained and remains consistent with the rear wall of the adjacent property to the north.
60Finally, there are no windows on the rear (west) elevation of the addition although there is one window, limited in size, within the north and south elevations of the third-storey addition.
61The general intent and purpose of the FSI regulation is to ensure that the massing and density are not out of character or incompatible with the surrounding properties when the total floor area is considered as a function of the lot area.
62The existing dwelling already exceeds the maximum permitted FSI, as do other dwellings in the immediate context where there is a variety and mix of character in terms of floor area and FSI.
63However, while an FSI of 1.51 times the area of the lot is requested compared to the permitted FSI of 0.69x, the existing FSI of 1.39 and the additional density are fully accommodated within the existing building height, length, depth and setbacks.
64However, the FSI regulation in isolation is not an effective metric of compatibility and neighbourhood character. The test is not whether the FSI variance falls within the ‘range’ or is below the average, but whether the density respects and reinforces the existing physical character of the neighbourhood. “Existing physical character” is what exists.
65The general intent and purpose of restricting the encroachment of the exterior stairs providing access to the dwelling into the required side yard setback is to provide for access and appropriate separation between dwellings.
66The fire escape stairs and platform on the north side wall have been in place for an extended period of time and were constructed prior to the third-floor rear addition. They provide emergency access in the case of fire and do not contribute to the height, scale, massing or bulk of the dwelling.
67Furthermore, they are located towards the rear of the property, generally screened from the street, and the abutting homeowner to the north is advocating that they be allowed to remain.
68I am satisfied that the proposed variances for FSI and encroachment of the exterior stairs into the north building setback maintain the general intent and purpose of the Zoning By-law.
MINOR AND DESIRABLE FOR THE DEVELOPMENT OF THE LAND
69I find that there are no undue adverse impacts of a planning nature arising from the proposal. I find also that the proposal is desirable for the development of the land given that the modified structure allows for a more efficient use of the existing 3-storey dwelling without increasing the building’s height, length, depth or lot coverage.
CONCLUSION
70I find the two variances requested, individually and cumulatively, meet the tests set out in s. 45(1) of the Planning Act.
DECISION AND ORDER
71The Appeal is allowed, and the decision of the Committee of Adjustment, dated May 10, 2023, is set aside. The variances listed in Appendix A below are authorized, subject to the condition contained in Appendix B that follows.
D. Lombardi
TLAB Chair
Attachments
APPENDIX A
REQUESTED VARIANCES TO ZONING BY-LAW 569-2013
- Chapter 10.10.40.40.(2)(A), By-law 569-2013
Additions to the rear of a detached house erected before October 15, 1953, are permitted provided the residential floor space index of the dwelling, as enlarged, does not exceed 0.69 times the area of the lot (117.3 m2).
The altered dwelling has a floor space index equal to 1.51 times the area of the lot (256.7 m2).
- Chapter 10.5.40.60.(3)(A)(iii), By-law 569-2013
Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6 m.
The fire escape stairs are located 0 m from the side (north) lot line.
APPENDIX B
CONDITION(S) OF APPROVAL
- The development shall be constructed substantially in accordance with the Plans prepared by Nesta Design CO., including Drawing A100 – Existing Site Plan; Drawing A101 – As-Built Site Plan; Drawing A107 – Left Side (South) Elevation; Drawing A108 – Right (North) Side Elevation; Drawing A109 = Rear (West) Elevation; and Drawing A110 – Front (Esat) Elevation, all dated May 10, 2023, and attached as APPENDIX C to this decision. Any other variance(s) that may appear on these plans that are not listed in this decision are NOT authorized.
APPENDIX C
SITE PLAN DRAWINGS
Footnotes
- Mr. Candia’s Testimony (under Oath) at the Hearing on September 11, 2023.
- City of Toronto Order to Comply Issued July 27, 2023
- Exhibit 2 – Mr. Barton’s Expert Witness Statement (dated August 8, 2023): He provided the legally recognized floor area prior to the construction of the rear third-floor addition as follows: Basement – 63.45 m2; Ground Floor – 64.29 m2; Second Floor – 64.29 m2; Third Floor – 44.97 m2; Total Floor Area – 237 m2.