Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
File: 23 128034 S45 05 TLAB
FINAL DECISION AND ORDER
Issuance Date: September 25, 2022
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): ANDREW DALES, 45 WILLIAM STREET INC
Applicant(s): PARADIGM ARCHITECTURE & DESIGN
Property Address: 45 WILLIAM ST
COA File No.: 23 103530 WET 05 (A0031/23EYK)
TLAB Case File No.: 23 128034 S45 05 TLAB
Hearing Date(s): September 19, 2023
Decision Delivered By: TLAB Panel Member G. Swinkin
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Owner/ Appellant
A. Dales, 45 WILLIAM STREET INC
A. Lusty
Applicant
PARADIGM ARCHITECTURE & DES
Party
M. Cairns
U. Gautam
M. Hardiejowski
Party
City of Toronto
INTRODUCTION AND CONTEXT
1This appeal before the Toronto Local Appeal Body (the "Tribunal") concerns the property municipally known as 45 William Street (the "Property"). The Property is located in the central part of the former City of York, just northeast of the former Village of Weston.
2The Property currently accommodates a two-storey, detached dwelling with a rear yard detached garage.
3The owner of the Property (the "Appellant") wishes to remove the detached garage and establish a garden suite in the rear yard.
4For that purpose, the Appellant had plans prepared and reviewed by the City of Toronto Zoning Examination section of the Building Department. That examination revealed seven provisions of the Zoning By-law (By-law 569-2013, as amended) for which there was a compliance issue.
5Therefore, in order to advance the proposal, the Appellant made application to the City of Toronto Committee of Adjustment (the "Committee") for relief from these seven provisions.
6The Zoning By-law prescribes a maximum permitted height of an ancillary building containing a garden suite as 4 metres if the ancillary building containing a garden suite is located a minimum of 5 metres to less than 7.5 metres from the residential building on the lot. The proposed ancillary building containing a garden suite in this instance was proposed to have a height of 4.7 metres.
7This excess of height then consequentially caused the proposal to run afoul of provisions concerning the penetration of prescribed angular planes and the separation distance between the proposed garden suite and the existing principal residential building on the Property.
8In addition to the foregoing matters, the Appellant also required relief with respect to the extent of rear yard soft landscaping and the width of a newly proposed parking space on the Property (even though the Zoning By-law no longer requires on-site parking for these uses, the Appellant wishes to establish a new on-site space to take the place of the rear yard garage which is to be demolished but is unable to locate that space so as to provide the minimum width of space as stipulated by the Zoning By-law).
9The City Community Planning Department sent comment to the Committee expressing concern over the extent of variance relief being requested and recommended refusal of the application.
10The Committee refused approval of the application and the Appellant then appealed to the Tribunal.
11Between the time of that appeal and the date of this hearing, the Appellant had its architect revisit the proposal with the result that the structure's height has been reduced to conform with the 4-metre maximum standard. The effect of this reduction in height was to eliminate the need for all but two of the originally requested variances.
12The Appellant then took up discussion with staff from the City on this revision and arrived at a concord whereby the City appeared at this Tribunal hearing advising that they did not oppose the modified proposal or the two resultant variance requests.
13The two sole variance requests now being sought are:
Section 150.7.50.10.(1), By-law 569-2013
A minimum of 50% of the rear yard shall be maintained as soft landscaping (70 squa
metres). A total of 37.2% of the rear yard will be maintained as soft landscaping (52.1 square metres), and,
Section 200.5.1.10.(2), By-law 569-2013
The minimum width of a parking space is 3.2 metres. The proposed parking space will have a width of 2.4 metres.
THE LEGISLATIVE AND POLICY FRAMEWORK
14Variance – 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
15Counsel for the Appellant had present at the hearing two professionals to address the Tribunal regarding the issues arising out of this appeal, Andrew Dales, a land use planning consultant, and Jim S'ad, the architect who designed the proposed structure. Both were affirmed and provided oral testimony to the Tribunal in the hearing.
16As he is a land use planner with considerable experience, is a Registered Professional Planner and has appeared before the Tribunal on many occasions, Mr. Dales was qualified to offer opinion evidence on land use planning matters in the proceeding.
17Filed with the Tribunal in advance of the hearing was the affidavit of Mr. Dales setting out the history of the application, the relevant background as to the neighbourhood, a canvas of the relevant and applicable Provincial and City planning policy and his opinion with respect to the satisfaction of the revised proposal with the four tests set out in Section 45(1) of the Planning Act.
18Mr. S'ad was of considerable assistance to the Tribunal in explaining the rationale for the original design and the consequence of ultimately reducing the height. Put simply, the additional height would have allowed for a greater height of window glass and a greater penetration of light into the structure, with particular reference to the lower floor, thereby creating a brighter atmosphere.
19However, the Appellant's team recognized that the additional height then triggered the angular plane penetrations and the inadequate separation distance from the existing dwelling, resulting in what would give the appearance of a more substantial departure from the by-law's standards. Given the Community Planning Department comments, the Appellant's team understood the concern not to be one of impact on nearby properties but rather a fear of setting a precedent from a freshly minted set of zoning provisions for garden suites (adopted and enacted in early 2022) that could invite other applications in the neighbourhood which may not be acceptable. Nonetheless, in responding to the inquiry by the panel, Mr. S'ad was clear that the adjustment to the height would not compromise the living space and that there would be adequate ceiling height on both floors to accommodate the future occupants. From his comments, it appears that the Appellant's intention will be to rent out the garden suite to a third party.
20Mr. Dales described the Property as an urban residential property of limited width, currently improved with a newly renovated detached dwelling that is proposed to be maintained. A garden suite is proposed to replace the existing detached garage. As noted above, the Appellant wishes to maintain a parking space on the Property but there is no space available on the Property to provide a parking space with the Zoning By-law required width. The proposed space will be located on the existing driveway, which apparently has a long history of serving the parking purpose without any resulting negative impact.
21A key policy consideration in connection with development in Neighbourhoods designated lands are the criteria in Policy 4.1.5 of the Official Plan ("OP"). This policy directs one to determination of prevailing patterns with a view to ensuring the stability of the neighbourhood and its character.
22As Mr. Dales rightly points out though, garden suites are an emerging form of housing in the City and are therefore not yet present in significant numbers within the subject neighbourhood or across the City.
23However, they are clearly an authorized form of development, and he says that this proposed garden suite fits in well with the pattern of rear yard ancillary structures and secondary suites in the area, protects against the negative impacts on sunlight and privacy, and ensures compatible height, massing and scale.
24He discussed the provisions of the Site and Area Specific Policy which governs the establishment of garden suites, SASP 670, and which sets out criteria for the construction of garden suites on lands designated Neighbourhoods. He sees the proposal here as being consistent with those criteria.
25As such, he concludes that this proposal is in keeping with the general intent and purpose of the OP.
26With respect to the general intent and purpose of the Zoning By-law, Mr. Dales offered the view that the reduction in parking space width here would not create any operational issues or result in impacts on the site or to neighbours. And concerning the soft landscaping, he suggests that there will be adequate outdoor amenity area for the occupants of the Property. With respect to stormwater absorption, he offers that there remains adequate area over the front and rear yards to only minimally impair the stormwater management objective.
27On the question of the desirability of the grant of relief, Mr. Dales points out that the proposed garden suite will provide a much needed new rental housing unit within the built up urban area and thereby implement the policies of both the City OP and Provincial policy. Furthermore, his view is that the proposed structure will be compatible with the neighbourhood.
28Finally, on the question of whether the requested relief can be considered a minor departure from the Zoning By-law, Mr. Dales says that the numerical magnitude of the variances is not the central issue to be addressed in this test. The test of minor as expressed in Section 45 is intended to address whether the proposed variances will create undue impacts on neighbouring properties and streets. For the reasons articulated earlier, he concludes that the proposed variances here will not result in any undue impacts.
ISSUES AND ANALYSIS
29Mr. Dales sums up his planning analysis by saying that it is his professional planning opinion that the proposed variances: (a) are consistent with, conform to, and have regard to the Provincial Policy Statement, 2020, the Growth Plan for the Greater Golden Horseshoe, 2020, and Section 2 of the Planning Act; (b) maintain the general intent and purpose of the City OP and SASP 670; (c) maintain the general intent and purpose of Zoning By-law 569-2013; (d) are desirable for the appropriate development of the Property; and, (e) are minor and create no undue impacts on neighbouring and nearby properties.
30He goes on to underline that the proposed garden suite will be appropriate in scale in relation to other properties in the area, compatible with existing built form, and in keeping with other side yard parking conditions in the neighbourhood.
31In order to support the Tribunal's ability to deal with the modified proposal and reduced number of variance heads of relief, Mr. Lusty moved the Tribunal to exercise its authority under Section 45 (18.1) and (18.1.1) of the Planning Act to allow the modified application before the Tribunal and to find the modifications to be minor so as to not require any further notice. The Tribunal is satisfied that in these circumstances, especially as they have the effect of eliminating five heads of variance relief, the modifications can fairly be treated as minor and that no further notice is necessary before dealing with them, and therefore allowed that motion.
32Mr. Dales did propose that the Tribunal consider the imposition of two conditions which were the subject of comment to the Committee. One of those conditions has become very standard and emanates from input from the Urban Forestry Division of the City. This relates to the need for the Appellant to obtain permits from that Division for the removal of two private by-law protected trees that have been identified as being in locations which will conflict with the proposed construction. Although the relevant provisions of the Municipal Code will operate to require securing those permits without a condition imposed by the Tribunal, as Mr. Lusty points out, the imposition of the conditions tends to draw attention to the need to secure these permits and it has become accepted practice.
33The second proposed condition arose from a commenting memorandum sent to the Committee by Metrolinx. Metrolinx operates a commuter rail service on a rail corridor somewhat west of the Property, and it must be underlined here that the rail corridor is not adjacent to the Property but some three blocks or better distant from it in an area fully developed with longtime residential properties.
34Metrolinx was seeking what is styled as an environmental easement, which is apparently to allow them to burden the Property with operational emissions.
35The Tribunal had received no submission from Metrolinx on this matter and no one from Metrolinx was present at the Tribunal hearing to advance such a condition. The Tribunal canvassed counsel present as to whether they were supportive of the imposition of such a condition. Mr. Lusty considered the comments of the Tribunal concerning what superficially at least appeared to be an inequity being visited upon this Property in that hundreds of similarly situated properties would not be subject to any such burden, and he concurred that it did not seem fair, and he was not supporting its imposition. Mr. Hardiejowski indicated that the City was neutral on the matter.
36Section 45(9) of the Planning Act allows the Committee, and this Tribunal on appeal, to impose conditions on any approval that it considers advisable. Under the circumstances in this case and in the absence of any presence or submission by Metrolinx with respect to the environmental easement, the Tribunal does not consider such a condition advisable and will not impose it here.
CONCLUSION
37Based upon the material filed with the Tribunal and the oral evidence heard at the Tribunal hearing, the Tribunal is satisfied that the garden suite proposal being advanced for the Property and the variances requested, 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 to the Growth Plan for the Greater Golden Horseshoe, 2020.
38The Tribunal thus will allow the Appellant's appeal and approve the two heads of variance relief requested subject to a condition respecting the securing of permits for tree removal.
DECISION AND ORDER
39The Tribunal ORDERS THAT the appeal is allowed, and the following variances are approved, subject to the condition stipulated in paragraph 40 below:
Section 150.7.50.10.(1), By-law 569-2013
A minimum of 50% of the rear yard shall be maintained as soft landscaping (70 square
metres). A total of 37.2% of the rear yard will be maintained as soft landscaping (52.1
square metres), and,
Section 200.5.1.10.(2), By-law 569-2013
The minimum width of a parking space is 3.2 metres. The proposed parking space will
have a width of 2.4 metres.
40The condition is: 1. The Owner shall submit a complete application for a permit to injure or remove a privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.
G. Swinkin
Panel Member