Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
21 251843 S45 25 TLAB
Ahmed (Re), 2023 ONTLAB 136
DECISION AND ORDER
Issuance Date: September 20, 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. ISLAM
Applicant(s): F. AHMED
Property Address: 197 GREYABBEY TRAIL
COA File No.: 21 104281 ESC 25 MV (A0021/21SC)
TLAB Case File No.: 21 251843 S45 25 TLAB
Hearing Date(s): July 4, 2023
Decision Delivered By: TLAB Panel Member G. Swinkin
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Applicant | F. AHMED | |
| Appellant | M. ISLAM | A. STEWART |
| Party (TLAB) | CITY OF TORONTO | C. DOUGHERTY A. ABIMBOLA |
| Party (TLAB) | P. DU PERRON | |
| Party (TLAB) | C. PENNEY | |
| Participant | M. APOSTOLI | |
| Expert Witness | R. STEPHENS |
INTRODUCTION AND CONTEXT
1The subject matter of this appeal is the property municipally known as 197 Greyabbey Trail (the "Property"). It is located within the Guildwood Village neighbourhood of the former City of Scarborough. It is currently improved with a single-family dwelling. The owner, Momota Islam (the "Appellant"), wishes to demolish that structure and replace it with a new larger dwelling.
2The new dwelling was proposed as a three-storey dwelling and it required a number of variances from Zoning By-law 569-2013. An application for that variance relief was filed with the Committee of Adjustment (the "Committee"). The requested relief was denied by the Committee.
3The Appellant appealed that decision to the Toronto Local Appeal Body (the "Tribunal"). That appeal attracted the attention of the City of Toronto (the "City") and various neighbours, who sought and obtained Party status in this proceeding.
THE LEGISLATIVE AND POLICY FRAMEWORK
4Variance – S. 45(1) of the Planning Act
In considering the applications for variances from the Zoning By-laws, the Tribunal Panel must be satisfied that the application meets 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
5This appeal hearing before the Tribunal had been preceded by a mediation session on May 1, 2023, presided over by Member T. Yao. Based upon the Mediation Summary filed by Member Yao, various matters had been resolved as a result of that exercise. Most particularly, the Appellant agreed to reduce the proposal from a three-storey dwelling to a two storey dwelling and to remove a proposed deck from the rooftop. These commitments were sufficient to satisfy the City, which then dropped its opposition to the proposal.
6However, there were certain neighbours who continued to have objections to aspects of the proposal, which prompted the matter going to a full hearing before the Tribunal.
7The Tribunal was advised at the outset of the hearing that there had been settlement overtures the night before the hearing and that the matter appeared to be resolved in principle subject to formalization of the understanding among those persons.
8The Tribunal was asked to stand down the hearing for a short period so that the necessary formality among the non-City parties could be documented and reported back to the Tribunal.
9The Tribunal granted that request and continued the hearing after the lunch recess.
10On the basis of the complete settlement of the matter, the Tribunal heard consent evidence from the Appellant's planner, Jonathan Benczkowski.
11Mr. Benczkowski was qualified to offer opinion evidence on land use planning matters in the proceeding.
12Mr. Benczkowski started off his presentation by advising that the five heads of relief which were sought from the Committee had now been reduced to three heads. The request for the third storey was withdrawn and relief from a height provision of a former Scarborough zoning by-law was removed as that by-law was no longer in force.
13The relief being sought at this stage was, firstly, as to floor area. The Zoning By-law (By-law 569-2013) permits for this parcel a floor area of 279 m². The floor area being sought before the Committee was 382.33 m². As a result of modifications through the settlement discussions, this floor area was now being reduced to 362.92 m².
14The second area of relief being sought was as to height. The maximum permitted height of a dwelling with a flat roof is 7.2 m. The proposed dwelling height as it was presented to the Committee was 10.97 m. With the modifications as a result of the settlement, the requested height is 8.15 m.
15The third head of requested relief relates to the permitted number of platforms at or above the second storey. The Zoning By-law does not permit more than one platform on each elevation of the dwelling. In this instance, the Appellant was seeking to have two platforms (balconies) on the front elevation.
16In connection with these modifications, the Tribunal exercised its authority under Section 45 (18.1) and (18.1.1) of the Planning Act to permit them to be made and, as they reduced the extent of relief being sought and were done on full notice to all of the involved Parties, deemed them minor and not requiring further notice.
17Mr. Benczkowski explained that in addition to the modifications which have led to the reduced variance requests, there were also certain design modifications which have been proposed to address various further neighbour concerns.
18The original proposal did not propose any eaves along the sidewalls. It was suggested that articulation to the front elevation by way of eaves might help soften the look of the proposed dwelling. As a result, eaves were added.
19Following the mediation session, it was apparently suggested that the building be setback further from Greyabbey Trail as well as eliminating a brick wall enclosure around the front stairs, all of which would help to alleviate concerns from the neighbour to the east regarding obstruction of sightlines from the front of that dwelling, coupled with a request to reduce the building height as much as possible.
20In response to these concerns the building was pushed initially 1m further away from Greyabbey Trail and then a further 0.27 m so that the southeast corner of the dwelling will be setback 9.43 m from the front lot line. The brick wall enclosure has been eliminated and replaced with glass railings that step down with the stair landing to the front walkway area. And the building height was reduced from 8.23 m to 8.15 m.
21These features are reflected on plans prepared by CM Designers & Engineers, dated June 27, 2023, which were filed with the Tribunal in this proceeding. In order to secure implementation of these measures, it was proposed that a condition be imposed on any approval given by the Tribunal that the construction be in general conformity with these plans and drawings. This request was supported by all Parties and the Tribunal finds it appropriate.
ISSUES AND ANALYSIS
22Mr. Benczkowski confirmed that, in his opinion, the redevelopment proposal was a form of regeneration of the residential dwelling and presented no issues of consistency with the Provincial Policy Statement, 2020 nor regarding conformity with the Growth Plan for the Greater Golden Horseshoe, 2020.
23Mr. Benczkowski, in his witness statement, canvassed the relevant provisions of the City Official Plan ("OP"), which identify the Property as being within the Neighbourhoods designation. He also referred to select provisions included in the Healthy Neighbourhoods policies, the Built Form policies, and the development criteria within Policy 4.1.5 of the OP. In his view, the proposal was in keeping with the general intent and purpose of these OP policies.
24In canvassing the provisions of the Zoning By-law, Mr. Benczkowski suggested that the scale and mass of the redevelopment proposal was compatible with the dwellings in the neighbourhood. With respect to the matter of height, it was his view that the combination of yard setbacks and the introduction of eaves, would soften the perception of height and not result in any adverse impact.
25With the modifications to the proposal, privacy impacts were effectively eliminated, and it was his opinion that there would not be any unacceptable adverse impacts of a planning nature. On this basis, he believed that the proposed variances could be treated as minor.
26Finally, with the design modifications as noted, he was of the view that the proposal could be treated as desirable in terms of being a functional dwelling for its occupants which would take advantage of the view of Lake Ontario and would present in a compatible form with other dwellings in the neighbourhood.
27The Tribunal has authority under Section 45 (18.1) and (18.1.1) of the Planning Act to allow modifications to applications before it and, if satisfied that the medications can be considered minor, to allow those modifications without further notice. As the nature of the modifications was, in the view of the Tribunal, minor and as they were the result of negotiation amongst the interested parties, the Tribunal will allow them without further notice.
CONCLUSION
28On the strength of the foregoing, the Tribunal is satisfied that the requested variances, as modified before the Tribunal, are appropriate and meet the four tests of Section 45 (1) of the Planning Act, are consistent with the Provincial Policy Statement 2020 and conform with the Growth Plan for the Greater Golden Horseshoe 2020.
29Ms. Stewart requested that the Tribunal's Final Decision be held until the Tribunal has received confirmation from her that an updated Zoning Examiner's Notice specifically with reference to the revised plans has been issued and confirms the requested modified variances. The Tribunal assented to that request, however more than two and half months have elapsed since that time with no further advice and a lack of response to the Tribunal's inquiry as to its status.
30This matter should not remain open-ended indefinitely. Therefore, based upon the evidence heard by the Tribunal in the hearing and the material filed, the Decision will now be made final as detailed below.
DECISION AND ORDER
31The Tribunal ORDERS THAT the appeal is allowed and that the modified variances as follows are approved, on the conditions which are noted in the following paragraph 32:
Exception RD 1462. (A)(ii), By-law 569-2013 The maximum permitted floor area is 279 sq.m. The proposed floor area is 362.92 sq.m. (0.54 times the lot area).
Chapter 10.20.40.10.(4)(A), By-law 569-2013 The maximum permitted height of a dwelling with a flat roof is 7.2 m. The proposed dwelling height is 8.15 m.
Chapter 10.20.40.50.(1)(A), By-law 569-2013 There may be no more than a total of four platforms at or above the second storey, and no more than one on each of the front, rear and each side of the detached house. The proposed front main wall will have two platforms (2 balconies).
32The conditions are as follows:
The proposed development shall be constructed in substantial conformity with the site plan and elevation drawings prepared by CM Designers & Engineers dated June 27, 2023; and
The railing on the front ground floor platform will be glass as shown on the approved drawings.
G. Swinkin
Panel Member