Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-10-02

21 116616 S45 08 TLAB

Le v. Solyom, 2023 ONTLAB 140

DECISION AND ORDER

Issuance Date:

October 2, 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):

W. LE

Applicant(s):

PROJEKT STUDIO ARCHITECTS

Property Address:

108 ALBERTUS AVE

COA File No.:

20 116500 NNY 08 MV (A0138/20NY)

TLAB Case File No.:

21 116616 S45 08 TLAB

Hearing Date(s):

November 29, 2022, and September 25, 2023

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

PROJEKT STUDIO ARCHITECTS

Appellant

W. LE

Party

C. MANOUKIAN

GOODMANS LLP

(D. BRONSKILL & M. LAKATOS-HAYWARD

Participant

W. ORBACH

Expert Witness

J. MCFARLANE

Expert Witness

M. BARTON

INTRODUCTION AND CONTEXT

1There is a history to the appeal which comes before the Toronto Local Appeal Body (the "Tribunal") in this instance. It concerns a property municipally known as 108 Albertus Avenue (the "Property"). The Property lies on the north side of the street within the Lytton Park neighbourhood, west of Duplex Avenue and east of Rosewell Avenue, approximately midway between Eglinton Avenue West and Lawrence Avenue West.

2The Property is improved with a three-storey dwelling constructed apparently around 1912. It was acquired by the owners in 2019. The owners wish to build a three-storey extension onto the rear of the existing building.

3The Property is a rectangular-shaped lot with a frontage of 7.62 metres on Albertus Avenue, a lot depth of 40.2 metres and a lot area of 311.20 square metres.

4As the proposed extension did not fully conform with the zoning on the Property, in order to facilitate the project, the owners of the Property brought an application to the Committee of Adjustment (the "Committee") in 2020 seeking fifteen heads of variance relief at the time of filing. As the former City of Toronto Zoning By-law 438-86 was still in effect along with Comprehensive Zoning By-law 569-2013, two heads of relief were duplicative simply to deal with the continuing applicable provisions of By-law 438-86.

5Through the application circulation and exposure to the public, various comments were received. The owners responded by having their architect revise the proposal, which had the effect of reducing certain heads of relief and totally eliminating other heads. Most significantly, the proposed FSI was reduced from 1.07 to 0.94 times the lot area and the building length was reduced from 19.4 metres ("m") to 15.57m. As a result, the revised proposal as it came before the Committee for hearing consisted of eight heads of requested relief.

6The relief sought was to authorize a building length of 15.57m as against the permitted length of 14m, a building height of 10.86m as against a permitted height of 10m, a side wall height of 9.46 as against a permitted side wall height of 7.5m, a Floor Space Index ("FSI") of 0.94 as against a permitted FSI of 0.6, a roof eave extension to within 0.15m of the west lot line rather than the required 0.3m distance, and authorization of a front yard parking space.

7At its meeting on January 28, 2021, after having required a reduction in the requested FSI from 9.46 to 8,0 (which reduction was requested by the City Planning Department in their comments to the Committee, and which the owners accepted), the Committee approved the application and imposed a condition tying the approval to the filed east and west elevation drawings.

8The abutting neighbour to the east, Wen Le, (the "Appellant"), residing at 106 Albertus Avenue, appealed that decision to the Tribunal.

9The Tribunal held a hearing, allowed the appeal and set aside the Committee decision of approval by Tribunal Order of October 28, 2021.

10Counsel for the owners filed a Request for Review of that Decision. The result of the Review was that the Tribunal Decision of October 28, 2021, was set aside and a new appeal hearing ordered.

11This proceeding was the rehearing of the appeal. The first day of this proceeding was on November 29, 2022. The Tribunal heard the evidence of the owners' land use planner (Jane McFarlane) that day and through her cross-examination, an issue arose as to the proper calculation of gross floor area for this proposal under the Comprehensive Zoning By-law. As the Tribunal had only scheduled one day for the hearing (which day had run its course with the testimony of Ms. McFarlane), the proceeding was adjourned, and the owners' planner and counsel were advised by the Tribunal that it would be seeking explicit confirmation on the resumption of the hearing as to the proper computation of gross floor area for this project.

12The proceeding resumed on September 25, 2023. In the interim, Ms. McFarlane, had seen to revision and clarification of the floor plans for the project, had them submitted to the City Zoning Examination section of the Building Department and secured a Zoning Examiner's Notice, which was filed with the Tribunal in advance of the resumption of the hearing.

13A Supplementary Witness Statement by Ms. McFarlane was also filed in advance of the resumption of the hearing, detailing the steps which had been taken in the interim. In response to that, the land use planning consultant retained by the Appellant, Michael Barton, filed a Response to the Supplementary Witness Statement of Ms. McFarlane.

14The Tribunal heard Mr. Barton's testimony on September 25th. The Tribunal heard final submissions from the Parties on that date and allowed them to file formal summations up to September 28th.

THE LEGISLATIVE AND POLICY FRAMEWORK

15Provincial Policy – S. 3, Planning Act

A decision of the Tribunal must be consistent with the 2020 Provincial Policy Statement (PPS) and conform to the Growth Plan for the Greater Golden Horseshoe (Growth Plan).

16Variance – S. 45(1), Planning Act

In considering applications for variances from the Zoning By-laws, the Tribunal must be satisfied that the applications meet all of the four tests under s. 45(1) of the Planning 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

17As noted above, the Tribunal heard evidence on behalf of the owners/applicants through Jane McFarlane. Based upon her professional credentials and work experience, Ms. McFarlane was qualified to provide opinion evidence on land use planning matters in the proceeding.

18Similarly, the planning evidence called by the Appellant came through an experienced land use planning consultant, Michael Barton, who was also qualified to offer opinion evidence on land use planning matters in the proceeding.

19As between the two planners, there was no perceived significant engagement of Provincial planning policy triggered by this application. As Mr. Barton took the position that the proposal failed the four tests under Section 45(1) of the Planning Act, he really didn't directly address Provincial planning policy, likely on the basis that it was unnecessary to take that step since the proposal couldn't, in his view, surmount the hurdles of the intent and purpose of the City Official Plan ("OP") and Zoning By-law. Ms. McFarlane addressed the Provincial planning policy provisions of nominal application in a perfunctory way and concluded that there was no lack of consistency with the PPS or any issue of non-conformity with the Growth Plan.

20The Tribunal accepts Ms.McFarlane's conclusions on the matter of Provincial planning policy.

21Both planners acknowledged that the Property and the surrounding lands fall within the Neighbourhoods designation under the OP. In accordance with the dictates of Policy 4.1.5 of the OP, for the purpose of establishing the study areas directed by that policy, both planners delineated a Geographic Neighbourhood and an Immediate Context. With some minor differences between them on the delineation of the Geographic Neighbourhood (or Broader Context, as it is also referred to), there was essential consonance on the bounds of the relevant study areas.

22The general area was described as being a low rise residential neighbourhood developed preponderantly with detached dwellings (although containing semi-detached dwellings amongst the singles), those dwellings being two and three storeys in height.

23By the time of this hearing, the revisions to the proposal were fully implemented in the plans filed, which plans were dated June 30, 2023, as prepared by Project Studio Architects.

24At this hearing the variances being sought were as follows:

Chapter 900.2.10(949)(A), By-law 569-2013

The maximum building length is 14.0m.

The proposed building length is 15.57m

Chapter 10.10.40.40.(1)(A), By-law 569-2013

The permitted maximum floor space index is 0.6 times the area of the lot.

The proposed floor space index is 0.8 times the area of the lot.

Chapter 10.5.40.60.(2), By-law 569-2013

A canopy may encroach into a required minimum building setback to the same extent as the platform it is covering.

The proposed front canopy is existing beyond the sides of the platform and is setback 0.433 m from the east lot line.

Chapter 10.5.40.60.(7), By-law 569-2013

Roof eaves may project a maximum of 0.9m provided that they are no closer than 0.30m to a lot line.

The proposed eaves are 0.0 m from the west lot line.

Chapter 10.5.80.10.(3), By-law 569-2013

A parking space may not be located in a front yard or a side yard abutting a street.

The proposed parking spot is located in a front yard.

25With the passage of time from the original application to this hearing, the provisions of Zoning By-law 438-86 which had been identified as requiring relief ceased to be in effect and those heads of relief were removed from the list. As well, the standards with respect to height control changed so as to eliminate any need for relief under that rubric.

26Since the variance relief above stated had been modified from what was originally before the Tribunal, counsel for the owners moved that the Tribunal allow these modifications and do so on the basis that they were minor and did not require any further notice as authorized by Section 45 (18.1) and (18.1.1) of the Planning Act.

27The Tribunal concurred in the view that in the circumstances, the modifications were minor, and that the Appellant was fully aware of them, and on that basis allowed the motion and authorized proceeding with the variances as so modified.

28It would be fair to say that the key point of engagement between the planners was over the relief being sought with respect to FSI. In fact, Mr. Barton conceded that he was not challenging individually the heads of relief in Items 3, 4 and 5 (the front platform canopy extent, the eaves encroachment, and the parking space) even if they may represent on a cumulative basis with the other requested relief a signifier of overdevelopment. Based upon that concession, the positive evidence on those heads by Ms. McFarlane and from the Tribunal's own perception of the evidence, the Tribunal is satisfied that the relief under those three heads meets all four of the tests under Section 45(1) of the Planning Act.

29Both planners secured data from the City and other sources as to the built form characteristics within their identified study areas. This data was put up in chart form and reviewed by each of them.

30Ms. McFarlane approaches the data on the basis that although the prevailing form of development in the study area is detached dwelling, those properties fall within a range of outcomes vis-a-vis the Zoning By-law standards. Many properties within the Geographic Neighbourhood and Immediate Context have had the benefit of variance relief, which is particularly characteristic of new builds and owners are now more inclined to build larger dwellings.

31A case in point is the property immediately adjacent to the west of the Property, 110 Albertus Avenue. It was the subject of a variance application which was ultimately dealt with by the Tribunal in a decision issued on September 27, 2017.

32Both Parties put that Tribunal decision into play in their evidence or submissions. That decision by Member McPherson authorized 12 heads of relief, the key ones for the purpose of this review being an FSI of 0.69 as against the permitted FSI of 0.6, a building length of 16.99m as against a permitted length of 14m and side main wall heights of 9.21m as against 7.5m for this flat roofed structure.

33That structure was built and it could be clearly viewed in the photographic evidence produced in this hearing. It extends well beyond the length of the existing structure on the Property and would extend 1.439m beyond the proposed structure on the Property if the proposed structure is approved and built.

34Member McPherson indicates that the site plan demonstrates that the proposed dwelling there will have a rear yard setback in excess of 16m, which is significantly larger than the By-law requirement of 7.5m. That will hold true in the circumstances of the Property in this case in that the 1.57m requested increase in building length will maintain a 13.55m rear yard setback, which similarly is well in excess of the by-law minimum standard and will ensure adequate open space.

35Member McPherson also goes on to observe at page 15 that "With respect to the density, the TLAB has reviewed the evidence provided in Exhibit 4 and finds that the FSI of the development is in keeping with other recent developments in the neighbourhood which contribute to the overall character. In fact, most of the recent approvals have an FSI of 0.7 times the lot area and higher. Planning staff specifically requested that the FSI be under 0.7 times the lot area and the plans were changed to address this comment. No variances to the front or rear yard setback are required and no overall height variance is required. The resulting built form is a reasonable deployment of density on the subject site within the context of the area as shown and this panel finds the density appropriate".

36There is a parallel in this case with the circumstances in that decision in that City Planning Department staff here requested that the FSI be no greater than 0.8 and the owners complied with that request by lowering the FSI to 0.8. Given the surrounding circumstances, most notably the proximate presence of 110 Albertus Avenue and the relationship between the properties, City Planning Department staff may have just been acknowledging the immediate context and coming to a conclusion about compatibility. This was essentially the position being taken by Ms. McFarlane, that the proposed FSI was within the range found in the neighbourhood and that the proposed structure would be compatible with its neighbours.

37In that regard, although Ms. Le in her own direct testimony raised issues about the impact of loss of light on her rear yard as a result of the proposal, there were no sun/shadow studies prepared or tendered in evidence to demonstrate that. And Mr. Barton neither alleged such an impact in his written witness statement nor in his oral testimony. In fact, he expressly acknowledged that there did not appear to be any prospect of invasion of privacy, overlook or material loss of light to be suffered on the property at 106 Albertus Avenue.

38Also from page 15 of Member McPherson's decision are comments that are apposite to matters at play in this appeal. "The TLAB prefers the evidence of Mr. Romano that in the immediate vicinity, there are rear walls that extend beyond the rear walls of existing houses and this is a common characteristic in the area. The test in the OP is not to replicate what exists but generally fit within the physical patterns in the neighbourhood. The physical pattern in the area has a variety of building lengths. It is noted that the maximum building depth remains less than 17.0 m and therefore 3 of the original variances were deleted. I agree with Mr. Romano that it is reasonable to expect that some loss of light will result from any development of the site and that the incremental shadow would be reasonably expected within the urban context."

39This panel observed from the aerial photography in the documentary evidence that there is no pattern on the north side of Albertus Avenue regarding the alignment of the rear walls of the dwellings. One sees a variety of building lengths and depths. The effect of this approval would actually tend to moderate the differentiation here, and even though the extended building would now run deeper on the lot than the depth of the rear wall on the Appellant's property, there is no clear evidence of undue adverse impact which would result on the Appellant's property.

ISSUES AND ANALYSIS

40As noted above, the central thrust of the opposition to the proposal as advanced by Mr. Barton was that the FSI being sought was not in keeping with the prevailing level of FSI in this neighbourhood.

41In his witness statement, Mr. Barton says the following: "The Maximum Floor Space Index has been established to control built form density as a relationship to the size of the lot. Any zoning relief to this regulation must satisfy all four tests of the Planning Act. While some relief to the current regulation for FSI may be appropriate, the proposed FSI does not respect and reinforce the prevailing character of the relevant geographic neighbourhood. Thus, this requested minor variance will result in a performance standard for density that does not maintain the general purpose and intent of the Official Plan and will not be compatible with the physical character of this established neighbourhood."

42He further says in his witness statement: "The Subject Property is clearly located in a stable residential neighbourhood. While there have been proposals in recent years to construct new dwellings or expand and enhance existing dwellings that have received zoning relief to the maximum building length and floor space index performance standards, the characteristics of these properties do not represent the prevailing built form character of the neighbourhood and do not exist in sufficiently substantial numbers to represent a significant presence. Many of these other properties that received minor variance approval also received less relief to the prevailing zoning standards than proposed under this application."

43And then he says: "The proposed dwelling represents infill development that will not fit in, respect and improve the character of the surrounding area, particularly the neighbouring properties. The proposed dwelling will significantly alter the massing, scale, density, rear setback and landscaped open space of the Subject Property relative to existing conditions and permitted as-of-right. This will directly impact the relationship of the built form and open space characteristics of the Subject Property relative to the neighbouring properties."

44The problem with this latter proposition is that although it does recognize that the proposal here will bring a dramatic change to the Property, he fails to acknowledge that it will render the development of the Property more in keeping with the property to its west and without any demonstrated adverse effect to the property to its east.

45Mr. Barton clearly recognizes that there have been Committee approvals in the area which have allowed increased FSI and building length and he seems to accept that these approvals can be reconciled with the notion of prevailing character.

46From her assessment of the built form outcome of the proposal, Ms. McFarlane concludes that the proposal maintains the general intent of Section 4.1 of the OP concerning policies related to the Neighbourhoods designation. Her view is that, despite being at the high end of the range of FSI found in the study areas, the altered dwelling will continue to be of a low-rise residential built form that fits with the general physical character of the surrounding neighbourhood. The existing lot and street pattern, open landscape and streetscape character will be maintained through the redevelopment.

47Mr. Barton seems to be reading the reference to 'prevailing' as generating numeric boundaries based upon a tabulation of the majority of properties reviewed. The Tribunal acknowledges that the OP references the frequency of occurrence as feeding into the concept of prevailing but at the same time, the OP requires one to view change as inevitable, positive and to be understood against a background of general character. That is, character is not susceptible of quantification but arises out of harmonious relationships between and amongst built form and the natural environment. On a pragmatic view of the final built form proposed here, the Tribunal inclines to the conclusion advanced by Ms. McFarlane, that it will 'fit' within its neighbourhood.

48On this basis, the Tribunal prefers the opinion of Ms. McFarlane that the proposal here and its associated requested heads of zoning relief is in keeping with the general intent and purpose of the OP and the Zoning By-law.

49Furthermore, in the absence of any demonstrated adverse impacts, the Tribunal accepts the proposition advanced by Ms. McFarlane that these heads of relief can be treated as minor.

50And lastly, with respect to the desirability of the requested relief, Ms. McFarlane asserts that there are examples in the vicinity indicating that the neighbourhood has experienced gradual redevelopment as original dwellings have been upgraded and/or replenished over time. The proposed development is of a similar form and nature to new houses which have replaced original houses throughout the neighbourhood. It will be an enhancement to the existing dwelling and will be of a size consistent with the new builds in the neighbourhood.

51This panel finds the analysis articulated by Member McPherson in the case involving the immediately proximate property at 110 Albertus to be entirely applicable here and of invaluable guidance.

52In his final submissions, Mr. Lakatos-Hayward urges the Tribunal to be guided by a leading variance appeal decision of the former Ontario Municipal Board rendered in 1987 by its esteemed Member Chapman, Motisi v. Bernardi, [1987 CarswellOnt 3719, [1987] O.M.B.D. No. 2, 20 O.M.B.R. 129], which states that compatibility is not being the same as, or even similar to, but capable of co-existing together in harmony, and it was Ms. McFarlane's evidence that the Proposal is appropriate and compatible with the evolving nature of the neighbourhood. This panel believes that the evidence here supports that view.

53Mr. Lakatos-Hayward also directs the Tribunal to the approach of this panel in 251 Old Forest Hill Road, TLAB Decision issued August 16, 2022, [Michael Goldstein/CZ Designs and Consulting Inc] which relied upon both a quantitative and qualitative assessment of the circumstances of the proposal and the neighbourhood.

54He urges the Tribunal to treat the evidence in this case as showing that the proposal fits, that it is compatible, sensitively designed, contextually appropriate, and will result in a dwelling that exists in harmony with its surroundings much like the plethora of other similar new homes in the neighbourhood.

55The Appellant also put before the Tribunal in her final submissions three decided cases of other panels of the Tribunal, but they were not particularly helpful to this panel as the project and neighbourhood characteristics in them were sufficiently different as to really represent very different contexts.

CONCLUSION

56The Tribunal is persuaded by the evidence in this proceeding that the variance relief sought on this appeal, as modified, is warranted and meets the four tests laid down in Section 45(1) of the Planning Act. As such, and due to the need to reflect those modifications and to adjust and update a condition to the approval, the Tribunal will be allowing the appeal for the purpose of approving the finally modified heads of relief and to impose a redrafted condition.

57The condition imposed by the Committee required development in substantial conformity with certain filed side elevation drawings. In the appeal hearing, Ms. McFarlane suggested that it may be preferable to tie the approval to the full set of revised filed drawings, including the site plan, floor plans and elevation drawings. Part of the reason for doing this is to more specifically make clear that there is to be a separation and segregation of area on the third floor which is not to be accessible for use as liveable space. This is key to abiding by the final calculation of FSI at 0.8.