Dovigi (Re), 2023 ONTLAB 146

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-10-24

23 157198 S45 12 TLAB

Dovigi (Re), 2023 ONTLAB 146

DECISION AND ORDER

Issuance Date:

October 24, 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):

P. DOVIGI

Applicant(s):

S. MCGAFFEY

Property Address:

63 OLD FOREST HILL RD

COA File No.:

22 193287 STE 12 MV (A0943/22TEY)

TLAB Case File No.:

23 157198 S45 12 TLAB

Hearing Date(s):

September 21, 2023

Decision Delivered By:

TLAB Panel Member R. Kanter

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Owner

DOVFAM OFH INC.

Appellant

P. Dovigi

C. Kapelos

Witness

S. McGaffney

Party

J. Berman

A. Stewart

Party

D. Meisel

A. Stewart

Party

M. Antoszek

A. Stewart

INTRODUCTION AND CONTEXT

1On May 17, 2023 the Committee of Adjustment (the “C of A”) refused an application to alter an existing two storey dwelling by constructing a rear three-storey addition and a new integral garage (the “Original Application”). The Original Application at 63 Old Forest Hill Road (the “Site”) was illustrated by plans dated February 17, 2023 (the “Original Application Plans”).

2On June 6, 2023 counsel for the Appellant, Christine Kapelos, appealed the C of A Decision (the “Appeal”) to the Toronto Local Appeal Body (the “TLAB”).

3On July 10, 2023, John Berman and David Meisels requested Party status to oppose the Appeal. On August 17, Michael Antoszek also requested Party status in opposition to the appeal. Mr. Berman, Mr. Meisels and Mr. Antoszek (collectively, the “Opposing Parties”) retained Amber Stewart as their counsel.

4On August 30, 2023 counsel for the Appellant, with the consent of counsel for the Opposing Parties, advised me that the Appellant settled the dispute.

5On September 21, 2023 I held conducted an expedited hearing on the terms of the proposed settlement, pursuant to Rule 19 of the TLAB Rules of Practice and Procedure.

THE LEGISLATIVE AND POLICY FRAMEWORK

6Provincial Interest – S. 2

The Minister, the council of a municipality, a local board, a planning board and the Tribunal, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as,

(a) the protection of ecological systems, including natural areas, features and functions;

(b) the protection of the agricultural resources of the Province;

(c) the conservation and management of natural resources and the mineral resource base;

(d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest;

(e) the supply, efficient use and conservation of energy and water;

(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;

(g) the minimization of waste;

(h) the orderly development of safe and healthy communities;

(h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies;

(i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;

(j) the adequate provision of a full range of housing, including affordable housing;

(k) the adequate provision of employment opportunities;

(l) the protection of the financial and economic well-being of the Province and its municipalities;

(m) the co-ordination of planning activities of public bodies;

(n) the resolution of planning conflicts involving public and private interests;

(o) the protection of public health and safety;

(p) the appropriate location of growth and development;

(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;

(r) the promotion of built form that,

(i) is well-designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;

(s) the mitigation of greenhouse gas emissions and adaptation to a changing climate.

7Policy Statements and Provincial Plans – S. 3(5)

A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Tribunal, in respect of the exercise of any authority that affects a planning matter,

1. shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and

2. shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.

8Variance – 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

9Counsel for the Appellant called Sean McGaffey to give evidence and asked me to qualify him as an expert witness. After reviewing Mr. McGaffey’s education and experience, I qualified him as an expert able to give opinion evidence in the field of land use planning. I entered the following material as Exhibits:

Ex. 1 – Expert witness statement

Ex. 2 – Document disclosure

Ex. 3 – List of revised variances and revised conditions

10Mr. McGaffey described the Site, located on the east side of Old Forest Hill Road, south of Dunvegan Road in a neighbourhood known as Forest Hill South.

11The lot is an irregular trapezoid (4 sided) shape, with a diagonal frontage of 36.576 metres on Old Forest Hill Road, a depth of 83.25m east of Forest Hill Road, and a total area of 2,460m2. The Site constitutes one of the largest lots in the neighbourhood.

12Mr. McGaffey described the existing house on the Site as a large building with many historic attributes, including an extensive stone wall along the front and a highly articulated front façade. The existing building is located closer to the rear lot line than is allowed by the applicable Zoning By-law, 569-2013 (the “ZBL”). It also contains a circular driveway leading to a driveway along the northern boundary of the Site, which connects to an internal garage at the rear of the existing dwelling.

13On December 14, 2022, Toronto City Council designated the Site and existing house as historic under Part IV of the Ontario Heritage Act.

14Mr. McGaffey described settlement discussions with the Opposing Parties, who each own properties on Dunvegan Road north of the Site. As part of the settlement, the proposed building height towards the rear would be substantially reduced, through a reduction in the extent of the third-floor area, with a 14.83m rear yard setback provided above the second floor. The one-story element along the northern side yard would eliminate windows or glazing, with dense landscaping and a 2m fence along the property line between the Appellant and the Parties to the north. The easternmost windows on the North Elevation are to be shuttered, and the third story deck is to have a privacy screen. The proposed building resulting from the settlement is illustrated in plans prepared by Hariri Pontarini Architects, dated August 28, 2023 (the “Revised Plans”).

15Mr. McGaffey opined that the Revised Plans have regard for matters of provincial interest, particularly the conservation of significant architectural features. They are consistent with the PPS, since they conserve the heritage attributes of the existing dwelling. The Revised Plans also conform to the Growth Plan, since they provide for a replacement dwelling within the delineated built boundary of Toronto in an area served by existing infrastructure and public transit.

16Mr. McGaffey opined that the Revised Plans maintain the general intent and purpose of the Official Plan, including policies concerning Healthy Neighbourhoods, the Public Realm, Built Form, Heritage Conservation and Neighbourhoods. The Revised Plans show a height consistent with the surrounding context of building heights, and a massing which is consistent with the pattern of stepped back and recessed upper floors within the neighbourhood. The below-grade garage is consistent with the configuration of other driveways and garages in the neighbourhood.

17Mr. McGaffey further opined that the Revised Plans maintain the general intent and purpose of the ZBL. The proposed floor space index of .57 times the area of the lot is within the range of recent approvals in the neighbourhood. The proposed height variance is limited to a portion of the building and is recessed. The reduced rear yard setback reflects the location of the existing house and facilitates additions to the rear and east sides of the building while maintaining the heritage features to the front and west sides of the building.

18According to Mr. McGaffey, the Revised Plans are desirable for the appropriate development and use of the land since the proposed changes are generally out of sight of the public realm and will not result in any undue negative impacts to adjacent residential properties.

19The Revised Plans are minor, since there are no undue adverse impacts, and they maintain, rather than destabilize, an established City neighbourhood.

20Counsel for the Objecting Parties had no questions for Mr. McGaffey.

21The City did not oppose the Original Application or the Revised Plans.

ISSUES AND ANALYSIS

22I have compared the Revised Plans with the Original Plans, and determined that the changes are minor, so that no further circulation is required.

23I have reviewed Mr. McGaffey’s uncontradicted planning evidence. I find that the Revised Plans meet the tests for variances set out in the Planning Act.

24I commend Ms. Kapelos and Ms. Stewart, who are both experienced land use lawyers, for reaching a settlement which meets the tests for variances and constitutes good planning

CONCLUSION

25I conclude that the Appeal should be accepted, subject to conditions to ensure that the building is built, and landscaping provided as described by Mr. McGaffey.

DECISION AND ORDER

26I order that the appeal is allowed in part, and that minor variances are approved as follows:

1. Chapter 10.20.40.10.(2), By-law 569-2013

   The maximum permitted height of all side main walls is 9.5 m.

   The height of the side main walls is 10.53 m.

2. Chapter 10.20.40.20(1), By-law 569-2013

   The maximum permitted building length is 17 m.

   The altered dwelling will have a length of 41.46 m.

3. Chapter 10.20.40.30.(1), By-law 569-2013

   The maximum permitted building depth is 19 m.

   The altered dwelling will have a depth of 48.47 m.

4. Chapter 10.20.40.40.(1), By-law 569-2013

   The maximum permitted floor space index is 0.35 times the area of the lot (861 m2).

   The altered dwelling will have a floor space index equal to 0.59 times the area of the lot (1,457.90 m2).

5. Chapter 10.20.40.70.(2), By-law 569-2013

   The minimum required rear yard setback is 17.22 m.

   The altered dwelling will be located 3.02 m from the rear (east) lot line.

6. Chapter 10.5.80.40.(2), By-law 569-2013

   For a detached house, the elevation of the lowest point of a vehicle entrance in a main wall of the building must be higher than the elevation of the centreline of the driveway at the point where it intersects a lot line abutting a street: 174.14m.

   The proposed elevation of the lowest point of a vehicle entrance in a main wall of the building is 169.49m.

7. Chapter 900.3.10(1332), Exception RD 1332, By-law 569-2013

(C) Despite regulation 10.5.40.60(1), in a front yard or rear yard, a platform with a floor higher than the first floor of the building above established grade may not encroach into the required yard setback. The proposed third storey rear balcony is encroaching into the required rear yard setback.

27I order that the minor variances are subject to the following conditions:

1. The proposed building shall be constructed substantially in accordance with the Architectural Drawings, prepared by Hariri Pontarini Architects, and dated August 28, 2023 attached as Schedule 1, and the landscape concept plan of Hariri Pontarini Architects dated August 28, 2023, attached as Schedule 2.

2. The most easterly window on the North Elevation (Schedule 1 A3.03), facing into the stairwell at the second storey, shall have fixed vertical privacy slats installed and maintained on the interior or exterior of the window, angled so as to direct light away from, and to prevent overlook to, 240 Dunvegan Road.

3. A solid privacy screen that is a minimum 1.8 m high shall be installed and maintained adjacent to the north and east sides of the third storey platform, as shown on Schedule 1, A3.03.

4. The Owner shall submit a complete application for a permit to injure or remove a privately owned tree(s), as per the City of Toronto Municipal Code Chapter 813, Trees Article II Private Tree Protection

R. Kanter

Panel Member

Schedule 1

Schedule 2