Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
23 120504 S45 06 TLAB
Oziel (Re), 2023 ONTLAB 148
DECISION AND ORDER
Issuance Date: October 27, 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. M. Oziel
Applicant(s): CZ DESIGNS & CONSULTING INC
Property Address: 17 Gorman Park Rd.
COA File No.: 22 235225 NNY 06 MV (A0774/22NYTEY)
TLAB Case File No.: 23 120504 S45 06 TLAB
Hearing Date(s): October 11, 2023
Decision Delivered By: TLAB Chair D. Lombardi
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Appellant | M. M. Oziel | |
| Applicant | CZ DESIGNS & CONSULTING INC | |
| Expert Witness | T. Ryuck |
INTRODUCTION AND CONTEXT
1This Hearing arises from an Appeal by Michael Oziel (Owner/Appellant) of the decision of the North York Panel of the Committee of Adjustment (COA) to permit the Applicant to construct a new 2-storey detached dwelling on the property known as 17 Gorman Park Road (subject property).
2The Applicant sought approval for a total of seven (7) variances. On February 16, 2023, the COA approved Variances Nos. 1 to 5, with conditions, but refused Variances Nos. 6 and 7.
3The purpose of the Application is to permit the Applicant to demolish the existing two-storey detached dwelling and rear detached garage and to construct a new two-storey detached dwelling with an integral garage and a rear unenclosed, covered deck (Diagram 1).
Diagram 1 – Proposed Site Plan for 17 Gorman Pk. Rd.
4The subject property is located on the east side of Gorman Park Road, southwest of Bathurst Street and Sheppard Avenue West.
5The subject property is designated Neighbourhoods in the Official Plan (OP) and zoned RD (f15.0;a550)(x5) under Zoning By-law No. 569-2013.
6Michael Oziel, the owner of the subject property appealed the COA’s decision to the Toronto Local Appeal Body (TLAB) and the TLAB set a Hearing date for October 11, 2023, to hear the matter.
7The only Party in the Appeal matter before the TLAB is Mr. Oziel; he attended the October 11th Hearing along with his expert planning witness, Tae Ryuck (Urban Advisors). The only evidence before the TLAB was provided by Mr. Ryuck.
8As part of the circulation of the application prior to the COA hearing on February 16, 2023, the Committee received a Staff Report dated February 9, 2023, from Community Planning staff.
9In that Staff Report, Community Planning confirmed that the Applicant had revised the proposal to be more in keeping with the intent of the Official Plan and the Zoning By-law. The revisions included increasing the proposed north side yard setbacks to the rear deck and canopy (Variances Nos. 1 and 2), as well as decreasing the proposed lot area of the rear platform from 6.84% to 6.5% (Variance No. 5).1
10Planning Staff, however, expressed concerns with Variances Nos. 6 and 7 for the proposed north and south side yard building setbacks and recommended to the Committee that those proposed setbacks be modified from 1.204 m and 1.208 m respectively, to 1.50 m in order to be more consistent with the pattern of development found in the neighbourhood.2
11The Applicant did not revise the application to reflect the modification to the building side yard setbacks in the proposal before the COA as recommended in the Staff Report.
12On February 16, 2023, the COA approved five (5) of the seven (7) variances requested but refused Variances 6 and 7.
13As a result, the Applicant appealed the COA’s decision and is requesting that the TLAB authorize the following variances:
THE REQUESTED VARIANCES
Chapter 10.5.40.50(2), By-law No. 569-2013 The minimum required side yard setback for a non-encroaching platform or similar structure is 1.8 m. The proposed north side yard setback for the non-encroaching rear yard platform is 1.513 m.
Chapter 10.5.40.50(2), By-law No. 569-2013 The minimum required side yard setback for a non-encroaching platform or similar structure is 1.8 m. The proposed north side yard setback for the non-encroaching rear yard canopy is 1.247 m.
Chapter 10.20.40.20.(1), By-law No. 569-2013 In the RD zone with a minimum required lot frontage of 18.0 m or less, the permitted maximum building length for a detached house is 17.0 m. The proposed building length is 18.771 m.
Chapter 10.20.30.40.(1)(A), By-law No. 569-2013 The permitted maximum lot coverage is 30% of the lot area. The proposed lot coverage is 34.57% of the lot area.
Chapter 10.5.30.40(2)(B), By-law No. 569-2013 In the Residential Zone category, any part of a platform without main walls, such as a deck, porch, balcony or similar structure that does not encroach into a required minimum building setback is not included in the calculation of lot coverage, if the lot area covered by these structures is no more than 5% of the lot area. The proposed lot area covered by these structures is 6.5 % of the lot area.
Chapter 900.3.10(5), Exception RD 5, By-law No. 569-2013 The minimum required side yard setback is 1.8 m. The proposed north side yard setback is 1.208 m.
Chapter 900.3.10(5), Exception RD 5, By-law No. 569-2013 The minimum required side yard setback is 1.8 m. The proposed south side yard setback is 1.204 m.
THE LEGISLATIVE AND POLICY FRAMEWORK
15Provincial 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.
16Variance – 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
17A summary of evidence is presented here to provide some context for the following sections of this Decision and Order.
18The only evidence and testimony in this matter were provided by Mr. Ryuck, whom the TLAB qualified at the Hearing to provide professional opinion evidence in the area of land use planning.
19Mr. Ryuck identified a Neighbourhood Study Area (NSA) to assess neighbourhood character in accordance with the direction of the Official Plan.
20He described the geographic neighbourhood as follows:
- The NSA includes both a ‘Broader Context’ (BC) and an Immediate Context’ (IC), both of which are consistent in terms of patterns of development.
- The neighbourhood is best described as a stable, but not ‘static’, urban setting with the neighbourhood experiencing new construction and reinvestment through renovations, additions, or entirely new builds.
- The neighbourhood consists primarily of 1 and 2-storey detached dwellings and the majority of properties are of a similar range in terms of lot and dwelling sizes.
- The neighbourhood streetscape consists mainly of a grid-like lotting pattern with most of the lots having consistent building heights and reduced side yard conditions.
- There is no significant difference between the two neighbourhood contexts as it relates to the proposal, in terms of evaluating the physical character and general ‘fit’.
ISSUES AND ANALYSIS
21I accept Mr. Ryuck’s evidence that the proposal is consistent with the 2020 Provincial Policy Statement, and it conforms to the Growth Plan of the Greater Golden Horseshoe.
OFFICIAL PLAN
22Mr. Ryuck provided an analysis of applicable Official Plan policies. He considered Sections 2.3, 3.1, and 4.1, although he acknowledged that the Policies under Section 4.1.5 (Development Criteria in Neighbourhoods) were of importance.
23OP Policy 4.1.5 contains within it development criteria that are intended to give greater specificity regarding the expectations for development in Neighbourhoods.
24The policies in 4.1.5 direct that physical change to established neighbourhoods must be sensitive, gradual and generally fit the existing physical character. A key objective of the OP is that new development respect and reinforce the general physical patterns in each geographic neighbourhood including a list of characteristics found in sub-paragraphs a) through i).
25Of the criteria set out in this Policy, I consider criteria c), d) e), and g) to warrant further discussion concerning the variances requested for side yard setbacks, building length, and lot coverage.
c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties;
d) prevailing building type(s); and
e) prevailing patterns of rear and side yard setbacks and landscaped open spaces.
26Mr. Ryuck submitted a Photo Study (Exhibit 2, Appendix C) and an analysis of previous COA and TLAB decisions within the NSA that reflect recent approvals similar to what the Applicant is requesting.
27He provided this data to demonstrate that the massing, scale, and side yard setbacks of the proposed 2-storey dwelling have similar physical characteristics to those dwellings immediately abutting it and in the surrounding area.
28He referenced mapping in the form of two Area Context Maps (Exhibit 2, Appendix D) to illustrate existing lot coverage and side yard setback conditions for properties in both the broader neighbourhood and in the Immediate Context.
29He asserted that the mapping showed that the design and orientation of the proposed dwelling would be consistent with other homes in the neighbourhood and the variances, if approved, would result in a dwelling that reinforces the area’s existing physical character and streetscape.
30Based on the record of previous approvals submitted by Mr. Ryuck and the photo evidence he provided, I am satisfied that the massing and scale of the proposed dwelling along with the requested side yard setbacks are materially consistent with, and will ‘fit’ harmoniously with the neighbourhood’s prevailing physical character.
31Furthermore, I find that the proposal will result in a dwelling that respects and reinforces the existing built form in the area, both in the Broader and Immediate Contexts.
32Therefore, I find that the proposal maintains the general intent and purpose of the Official Plan.
ZONING BY-LAW
33Mr. Ryuck’s evidence was that the general intent and purpose of the Zoning By-law is to regulate the use and physical characteristics of a building on a site and to ensure that the built form does not result in any unacceptable adverse impacts on the streetscape or adjacent properties.
34Provisions in the Zoning By-law regulating setbacks to platforms are intended, in part, to ensure there is adequate separation between platforms and neighbouring properties to mitigate privacy and overlook issues.
35Variances 1 and 2 requested by the Applicant relate to the north side yard setbacks for the proposed non-encroaching, at-grade, unenclosed rear yard deck, and the associated roof canopy covering the deck, respectively.
36Variance 1 is requested because the north side yard setback for the proposed rear deck is 1.513 m whereas the By-law requires 1.8 m. The proposed deck is not elevated or enclosed, and its design incorporates a flat roof canopy that covers the platform.
37Variance 2 for the rear yard canopy is triggered due to the extent of the decorative moulding which forms the outer edge of the roof canopy that extends slightly beyond the supporting brick pillars. (Photo 1)
Photo 1 – Proposed Rear Deck and Canopy at 17 Gorman pk. Rd.
38Mr. Ryuck’s Expert Witness Statement entered into the record at the Hearing as Exhibit 2, acknowledged that leading up to the COA hearing, the Applicant corresponded with neighbours and Community Planning staff to discuss the proposal and to consider and respond to concerns raised regarding the application.3
39In their February 9th Staff Report to the COA, Community Planning staff submitted that by increasing the proposed north rear side yard setback of the deck from 1.209 m to 1.50 m, and the corresponding setback for the roof canopy from 0.949 m to 1.247 m, the proposal would be more consistent with area approvals for side yard setbacks and therefore in keeping with the intent of the Zoning By-law and the Official Plan.
40As a result, the Applicant revised Variances 1 and 2 accordingly, actually increasing the north side yard setback for the non-encroaching rear deck to 1.513 m (or 5 ft.), a slight increase to the setback recommended by Planning Staff.
41Mr. Ryuck asserted that Community Planning Staff was supportive of the side yard setback variances requested and the proposal is reflective of the existing pattern of development both for side and rear yard setbacks in this neighbourhood.
42Furthermore, he asserted that the proposed setbacks, along with a proposed board-on-board fence along the rear and side lot lines, would minimize any impacts related to privacy or overlook to the adjacent neighbours to the north and south.
43The Applicant is also proposing that 66.4% (189.86 m2) of the rear yard amenity area be maintained as soft landscaping. No variances are required for rear landscaped open space or rear yard setback.
44The general intent and purpose of a maximum building length (Variance 3) is to regulate the size of a dwelling and maintain a rear wall alignment relative to adjacent properties. The proposed building length of 18.771 m is 1.771 m (or 5.8 ft.) longer than the maximum permitted building length of 17 m in the By-law and results from a one-storey ‘bump out’ at the rear of the proposed dwelling.
45The ‘bump-out’, which internally accommodates a ‘breakfast nook’ associated with the kitchen, is only for a short section along the rear wall located at the centre of the dwelling. The bump-out has been set back sufficiently from the north and south side yards to minimize impacts to abutting neighbours.
46The intent and purpose of the maximum permitted lot coverage for a building and a platform without main walls (Variances 4 and 5) is to regulate the massing and scale of development and to prevent overdevelopment of the lot.
47The maximum lot coverage permitted in the By-law is 30%; the proposed lot coverage is 34.57% or an additional 4.57% of coverage. Mr. Ryuck asserted that the proposed lot coverage for the dwelling is minor from both a quantitative and qualitative perspective and the additional massing will be indiscernible from the street.
48Furthermore, of the thirty-two (32) lots found within the Immediate Context in proximity to the subject property as identified by Mr. Ryuck, fourteen (14) or 44% of those lots have a lot coverage that is greater than 30% and similar to what is being proposed.
49While the proposed house (Photo 2) will be larger than the existing home on the subject property, the corresponding 31.84 m2 (342 ft2) increase in lot coverage will continue to maintain a two-storey dwelling of a similar built form and scale to other new dwellings recently constructed in proximity to the subject property on Gorman Park Rd.
Photo 2 – Proposed Front Elevation for 17 Gorman Pk. Rd.
50Similarly, the increase in lot coverage for the proposed rear deck relates to an at-grade platform that is not enclosed and will not add appreciably to the massing of the dwelling at the rear.
51The massing, scale, and architectural design of the proposed dwelling are similar to new homes that have been built recently on Gorman Park Rd., on the same side of the street (Nos. 7 & 9 Gorman Park Rd.- Photo 3)4 as the subject property and immediately across the street (Nos. 14 & 16 Gorman Park Rd.- Photo 4)5. The Photos below from Mr. Ryuck’s Area Photos provide several examples.
Photo 3 – No. 7 and No. 9 Gorman Park Rd., on the Same Side of the Subject Property
Photo 4 – No.14 & No.16 Gorman Park Rd., Immediately Across the Street from the Subject Property
52The general intent and purpose of the side yard provisions (Variances 6 and 7) are, in part, to ensure adequate separation distance between neighbouring properties and to establish a consistent rhythm along the streetscape.
53The Area Context mapping (Exhibit 2, Appendix D) that Mr. Ryuck presented illustrates that many of the properties in the geographic neighbourhood include side yard setbacks that do not comply with the provisions in the Zoning By-law.
54Of the thirty-two (32) lots in the Immediate Context, twenty-four (24) lots (or 75%) have side yard setbacks that are less than 1.5 m, whereas the minimum required by the Zoning By-law is 1.8 m.
55The proposed south side yard setback would match that which exists. There is an existing detached garage which is set back 0.39 m from the north lot line; this garage will be demolished.
56As a result, although the proposed side yard setbacks will be slightly less than the required setbacks in the Zoning By-law, they are not inconsistent with the existing setbacks for dwellings found within this neighbourhood and will not introduce an inappropriate building within the streetscape.
57Therefore, I am satisfied that the variances for building length, lot coverage and side yard setbacks including for the non-encroaching rear yard platform (deck) maintain the general intent and purpose of the Zoning By-law.
MINOR AND DESIRABLE FOR THE DEVELOPMENT OF THE LAND
58The construction of a new two-storey dwelling with an integral garage provides for additional living space for the Owner and his family while maintaining a building size and design that is sensitive to its relationship with adjacent properties and the surrounding neighbourhood.
59The Application represents modest regeneration and redevelopment that will result in a form of intensification of the subject property that will not destabilize the neighbourhood. It will also result in gradual and sensitive change that will not materially change the established pattern or built form in the area.
60The proposal has been designed in a manner that is sensitive and will ‘fit’ the neighbourhood context, and the deployment of the gross floor area in the form of a 2-storey dwelling will create no shadow, privacy or overlook impacts that are uncharacteristic of the existing context.
61The test for ‘minor’ focuses on the scale and nature of perceived impacts caused by the variances requested. The courts have established that the test is not that there be no impact but, rather, that the imputed impact rises to the level of being an undue impact of a planning nature.
62The variances sought by the Applicant, specifically those for lot coverage, building length, and side yard setbacks, will result in a new house that is consistent with and respectful of other dwellings within the neighbourhood, both in the immediate and broader contexts.
63The proposal will not result in any unacceptable adverse impacts over and above what the Zoning By-law already contemplates. The Applicant is not seeking any variances for floor space index, building height or depth, and the variances requested are numerically minor and the proposal is designed in a way that minimizes any impacts on adjacent properties.
64The proposed at-grade rear unenclosed deck and canopy are generally offset from both adjacent neighbours to the north and south reducing any privacy or overlook impacts.
65Additionally, the Applicant has proposed a board-on-board fence along the rear and side lot lines in proximity to the deck thereby providing additional privacy screening to abutting properties.
66Therefore, based on the findings above, I find that the proposal is desirable for the appropriate development of the land. I find also that there are no undue impacts of a planning nature arising from the proposed new dwelling.
CONCLUSION
67I find that the requested variances, individually and cumulatively, satisfy all four statutory tests as required in s. 45(1) of the Planning Act and it represents good planning. I authorize the variances requested below, subject to the conditions included herein.
DECISION AND ORDER
68The Appeal is allowed in part. The variances listed in Appendix A, below, are authorized, subject to the conditions contained in Appendix B, therein.
D. Lombardi Panel Member
APPENDIX A
Listed of Requested Variances
Chapter 10.5.40.50(2), By-law No. 569-2013 The minimum required side yard setback for a non-encroaching platform or similar structure is 1.8 m. The proposed north side yard setback for the non-encroaching rear yard platform is 1.513 m.
Chapter 10.5.40.50(2), By-law No. 569-2013 The minimum required side yard setback for a non-encroaching platform or similar structure is 1.8 m. The proposed north side yard setback for the non-encroaching rear yard canopy is 1.247 m.
Chapter 10.20.40.20.(1), By-law No. 569-2013 In the RD zone with a minimum required lot frontage of 18.0 m or less, the permitted maximum building length for a detached house is 17.0 m. The proposed building length is 18.771 m.
Chapter 10.20.30.40.(1)(A), By-law No. 569-2013 The permitted maximum lot coverage is 30% of the lot area. The proposed lot coverage is 34.57% of the lot area.
Chapter 10.5.30.40(2)(B), By-law No. 569-2013 In the Residential Zone category, any part of a platform without main walls, such as a deck, porch, balcony or similar structure that does not encroach into a required minimum building setback is not included in the calculation of lot coverage, if the lot area covered by these structures is no more than 5% of the lot area. The proposed lot area covered by these structures is 6.5 % of the lot area.
Chapter 900.3.10(5), Exception RD 5, By-law No. 569-2013 The minimum required side yard setback is 1.8 m. The proposed north side yard setback is 1.208 m.
Chapter 900.3.10(5), Exception RD 5, By-law No. 569-2013 The minimum required side yard setback is 1.8 m. The proposed south side yard setback is 1.204 m.
APPENDIX B
Conditions of Approval
The dwelling shall be constructed substantially in accordance with the following Site Plan and Elevation Drawings dated January 31, 2023, prepared by CZ Designs, and attached as Appendix C herein: Drawing A1 - Site Plan – Rev01; A6 - West Elevation; A7 - East Elevation; A8 - North Elevation; and, A9 - South Elevation. Any other variance(s) that may appear as required on these plans but are not listed in this written decision are NOT authorized.
The owner shall erect a board-on-board wood fence along the rear north and south lot lines of the subject property.
Where there are no existing street trees, the owner shall provide payment in lieu of planting one street tree on the City road allowance abutting each of the sites involved in the application. The current cash-in-lieu payment is $583/tree.
APPENDIX C
Site Plan and Elevation Drawings