Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
22 126574 S45 15 TLAB
Afsharian (Re), 2023 ONTLAB 150
DECISION AND ORDER
Issuance Date: October 31, 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): B. AFSHARIAN
Applicant(s): B. AFSHARIAN
Property Address: 9 DONWOODS DR
COA File No.: 21 250969 NNY 15 MV (A0898/21NY)
TLAB Case File No.: 22 126574 S45 15 TLAB
Hearing Date(s): February 24, 2023, and July 20, 2023
Decision Delivered By: TLAB Panel Member J. Tassiopoulos
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Applicant | B. Afsharian | |
| Appellant | B. Afsharian | A. Stewart |
| Party | City of Toronto | C. Dougherty |
| Party | B. T. Harris | W. Roberts |
| Party | E. Andrew | D. Neligan |
| Participant | J. K. Kosick | |
| Participant | York Mills Valley Association | V. von Stedingk |
| Participant | R. Lawrence |
INTRODUCTION AND CONTEXT
1The Hearing arises from an appeal by Behzad Afsharian of the decision of the City of Toronto (City) Committee of Adjustment (COA) to refuse the variances sought for the subject property located at 9 Donwoods Drive.
2The purpose of the application is to construct a new residential dwelling with an integral garage.
3The subject property is located on the south side of Donwoods Drive, east of Yonge Street, south of York Mills Road and north of Teddington Park Drive. The property is designated Neighbourhoods and zoned RD (f18.0;a690) under City of Toronto Zoning By-law No. 569-2013 and R3 under former City of North York Zoning By-law No. 7625.
4Prior to the scheduled Hearing date of February 24, 2023, the Parties achieved a settlement in principle. Ms. Stewart, Counsel for the Applicant / Appellant indicated that there were further adjustments and discussion required with the Counsels representing the Parties to finalize the settlement. The Hearing was recessed to provide the Parties the opportunity to accommodate this request.
5In attendance at the Hearing were:
- Representatives for the Applicant / Appellant, Amber Stewart and planner Franco Romano;
- Counsel for the City, Colin Dougherty;
- Representatives for the Party B. T. Harris, William Roberts and planner Terry Mills;
- Counsel for the Party E. Andrew, David Neligan;
- Participant Ross Lawrence; and
- Participant Vicko von Stedingk representing the York Mills Valley Association.
6Participants Ross Lawrence and Vicko von Stedingk were assured that regardless of the settlement between the Parties, they would be provided the opportunity to present their concerns once evidence from the expert witness had been provided. Mr. Lawrence did not present as he was absent for the afternoon of the Hearing.
7Following the pause in the Hearing, to allow the Parties to finalize their settlement discussion, it was indicated that by each of the Parties that they were content to proceed with the Hearing.
8Ms. Stewart provided a synopsis of the changes that were made as part of the settlement and that Mr. Romano would provide evidence with respect to the variances and changes made to them. She concluded that the changes would be confirmed through a resubmission to the zoning examiner to confirm the variances and changes prior to finalizing the submission to TLAB for approval.
9As the variances have either not changed or have moved in a more positive direction (e.g., lot coverage and rear yard setback improvements) from what was previously before the Committee of Adjustment and that the other revisions made are minor, pursuant to section 45(18.1.1) of the Planning Act, I find that no further notice is required.
10The requested variances:
Chapter 10.20.30.40.(1), By-law No. 569-2013 The permitted maximum lot coverage is 30% of the lot area. The proposed lot coverage is 39.27% of the lot area.
Chapter 10.20.40.70.(2), By-law No. 569-2013 The required minimum rear yard setback is 7.5 m. The proposed rear yard setback is 7.04 m.
Chapter 10.5.40.60.(1)(A)(i), By-law No. 569-2013 A platform without main walls, attached to or less than 0.3 m from a building, with a floor no higher than the first floor of the building above established grade may encroach into the required front yard setback 2.5 m if it is no closer to a side lot line than the required side yard setback of 1.8 m. The proposed platform encroaches 2.735 m into the required front yard setback and has a west side yard setback of 1.19 m.
Chapter 10.5.40.60.(3), By-law No. 569-2013 Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6 m. The proposed front yard stairs are 0 m from the front lot line and encroach 0.87 m into the public right of way. The proposed side yard stairs have an east side yard setback of 0.36 m.
Chapter 10.20.40.10.(4), By-law No. 569-2013 The permitted maximum height for a detached house with a flat or shallow roof is 7.2 m. The proposed height is 9.26 m.
Chapter 10.20.40.10.(4), By-law No. 569-2013 The permitted maximum number of storeys is 2. The proposed number of storeys is 3.
Chapter 10.5.40.70.(1), By-law 569-2013 The required minimum front yard setback is 5.045 m. The proposed front yard setback is 4.45 m.
Chapter 10.20.40.70.(3), By-law No. 569-2013 The required minimum side yard setback is 1.8 m. The proposed east side yard setback is 1.52 m.
Section 12.7, By-law No. 7625 The maximum permitted building height is 8 m. The proposed building height is 13.38 m.
11Following the conclusion of the February 23, 2023, hearing it was agreed to by the Parties in attendance that the minutes of settlement would be finalized following confirmation of the variances through a final submission of the revised plans to the zoning examiner. The direction was for these items to be submitted for March 24, 2023.
12Having not heard from the Parties or received any final plans at the end of March 2023, I requested that a subsequent Hearing date be set to receive the final plans, the latest zoning review of the revised plans and variances sought and to ensure that the settlement between the Parties was still applicable.
13TLAB staff canvassed the Parties and set a second Hearing Day for July 20, 2023, at which time the finalized plans, variances and minutes of settlement were submitted to the TLAB.
14All Parties in attendance confirmed that the minutes of settlement had been finalized and that the plans and variances presented were consistent with those provided in evidence on February 24, 2023. Participants listed for this matter did not attend the July 23, 2023, Hearing date.
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
17Ms. Stewart provided a synopsis of the Terms of Settlement letter that would be the basis of the settlement agreement and the resulting plans, and their variances would be subject to confirmation through a zoning notice and minutes of settlement; which would be submitted to TLAB.
18Ms. Stewart summarized the changes that would be incorporated as a result of the Terms of Settlement agreed to by the Parties, including revised plans with positive changes or reductions to the variances, landscape plan revisions to ensure plantings and tree placement address the concerns of abutting neighbours, and the provision of a shoring plan.
EVIDENCE OF FRANCO ROMANO
19Mr. Romano described the immediate neighbourhood indicating that:
- including the subject property, Donwoods Drive consists of angled lots;
- Properties to the north and south of Donwoods Dive are perched higher above the subject property due to varied topography and grade variation with some of the buildings built into the hill;
- Dwellings are varied in their siting on the properties and have varied setbacks; and
- Reduced front yard setbacks are common and siting of dwellings on immediately neighbouring lots exhibit this condition.
20Mr. Romano described the changes in the plans as a result of the settlement and the variance revisions:
- The original design included a sloped roof, but the revised plans show a flat roof design with an 8.8m building height, a reduction from the original height proposed;
- The footprint configuration of the proposed building has remained the same, but the length has been reduced resulting in reduces lot coverage; and
- The rear and west side setbacks have been increased with the dwelling shifting slightly closer to the front, while the east side setback is reduced
21The existing stairs encroach into the boulevard and the proposed continues to utilize this condition, it is not a new condition.
22Moving the building closer to the street ensures natural features vegetation and mature trees on the site are protected and results in a new variance because it positions the proposed dwelling 0.6m closer to the front lot line. It is an improvement on the current proposal, will be imperceptible, and is minor in nature thus not requiring any further notice.
23The irregular lot shape results in the side yard setbacks being varied along the extent of the building in relation to the property lines. This also results in a varied rear yard setback that ranges from the sought 7.04m up to 10.01m.
24In the immediate neighbourhood it is quite common, given the irregular lot shapes, for variances to be required and in his analysis of the neighbourhood the order of magnitude of the variances being sought for the proposal is in keeping with variances sought for other properties in the neighbourhood.
25The building presents as a three storey building at the front and is two storeys in the rear elevation due to the topography and grade change. The presentation of three storeys is not uncommon in the neighbourhood and the proposed height to finished grade is now reduced to 8.8m in height.
26Mr. Romano provided an analysis of the immediate and adjacent to the immediate contexts with respect to building setbacks, building length, and lot area, depth, and coverage. He indicated that this along with his summary of the COA approvals, illustrated the range of property and dwelling types in the neighbourhood and that the variances being sought are in keeping with those for other approvals in the neighbourhood (Exhibit #1, pgs.41 to 48).
EVIDENCE OF VICKO VON STEDINGK
27Mr. Von Stedingk on behalf of the Participant, York Mills Valley Association, indicated he was not concerned with the settlement being reached with the immediate neighbours, but the Association was concerned about the proposal setting a precedent.
28The main concern was that the proposed building in relation to the lot was too large and that the lot coverage was greater than other lots and is not appropriate. It presented a more current type of coverage in comparison to the surrounding properties.
29The other concern was regarding soil stability and soil quality with respect to construction.
30He confirmed during cross examination that the current proposal was an improvement over the initial submission of the proposal but that it was not enough.
31He acknowledged that the shape of the lots in the neighbourhood would result in variances being sought and that the subject property was a constrained lot size.
ISSUES AND ANALYSIS
32I accept Mr. Romano's evidence that the proposal is consistent with the 2020 Provincial Policy Statement and conforms to the Growth Plan for the Greater Golden Horseshoe.
OFFICIAL PLAN
33Mr. Romano provided an analysis of the applicable Official Plan policies including 2.3.1, 3.1.2, 4.1.5, and 4.1.8.
34The proposal meets the general intent and purpose of the healthy neighbourhood OP Policy 2.3.1 as it maintains and enhances the streetscape while providing a compatible detached residential building.
35OP Policy 3.1.2 speaks to built form and siting of a development to fit into the existing and planned context. The proposal meets the purpose and intent of the built form policies as it provides a massing and scale that is consistent with the neighbourhood, is designed with the topography of the property, appropriate front yard setback and entrance facing the street, and includes an integral garage at-grade.
36OP Policy 4.1.5 contains within its development criteria that are intended to give greater specificity regarding the expectation for development in Neighbourhoods. Of the criteria that Mr. Romano reviewed, criteria c), e) and g):
c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties;
e) prevailing location, design and elevations relative to the grade of driveways and garages;
g) prevailing patterns of rear and side yard setbacks and landscaped open space;
37Having reviewed Mr. Romano's testimony and the proposed revisions and changes he summarized during his evidence with included his analysis of the previous approvals in the neighbourhood, the proposed changes, and the photographic evidence, I am satisfied that the proposal and its variances will fit and reinforce the streetscape and respects and reinforces the physical character of the neighbourhood and its context.
38I find that the proposal maintains the general intent and purpose of the Official Plan.
ZONING BY-LAW
39Mr. Romano's evidence was that the general intent and purpose of the building length Zoning By-law is to ensure the appropriateness of a dwelling on a particular lot and in particular the uniqueness with respect to the subject property.
40The general intent and purpose of the side yard setback provision in the Zoning By-law is to provide for appropriate separation between dwellings. All the adjustments to the front, rear, and side yard setbacks along with the proposed landscaping and tree planting to further address the proposed side yards to the neighbouring properties all contribute to an appropriate dwelling fit on the subject property.
41The new variances sought for the front yard setback, 4.45 m whereas 5.045 m is required is minor in nature and does not require the further notice or circulation of the plans. The proposed front yard setback is compatible with the immediately adjacent dwellings and complements their existing front yard setbacks as indicated in Mr. Romano's analysis of the immediate neighbourhood context.
42With respect to Mr. von Stedingk's concern that the approval of this proposal would create a precedent for lot coverage in the area, I do not agree. In matters of assessing such proposals and the variances associated with them, TLAB considers the variances of a specific proposal as related to the subject property in the immediate neighbourhood context. There was ample evidence provided that the irregular lot types and constraints of topography and grade results in variances being required for new development; which Mr. von Stedingk also acknowledged under cross-examination.
43Given Mr. Romano's evidence regarding the immediate neighbourhood statistics and approvals regarding lot coverage, and that the proposed lot coverage in keeping order of magnitude of lot coverage for other properties, I am satisfied that the coverage is a result of a constrained lot and does not set a precedent for the neighbourhood as these variances and conditions are specific to this proposal.
44With respect to the height and number of storeys variance, I am satisfied that the reduction in height will ensure a better fit within its context and be compatible with the neighbouring properties. As per the evidence provided for the proposed 3 storey front elevation and 2 storey rear elevation, this is consistent with what exists in the neighbourhood as a result of topography and grade change.
45For the above reasons, I am satisfied that the proposal maintains the general intent and purpose of the Zoning By-law.
MINOR AND DESIRABLE FOR THE DEVELOPMENT OF THE LAND
46I find that the variances sought are minor and there are no undue adverse impacts of a planning nature from the proposal. Based on the above findings, I also find that the proposal is desirable for the development of the land.
CONCLUSION
47This is an Appeal that has been settled between the Parties. The Participant concern regarding lot coverage has been considered and given that it has been further reduced in the current proposal and is in the realm of existing conditions and approvals in the neighbourhood, I find that the revised proposal is not contrary to the Planning Act and is within the range of reasonable outcomes.
48I find that the variances, individually and cumulatively, meet the four tests of s. 45(1) of the Planning Act.
DECISION AND ORDER
49The Appeal is allowed in part. The variances listed in Appendix A are authorized, subject to the conditions contained therein.
J. Tassiopoulos Panel Member
APPENDIX 'A'
LIST OF VARIANCES
Chapter 10.20.30.40.(1), By-law No. 569-2013 The permitted maximum lot coverage is 30% of the lot area. The proposed lot coverage is 39.27% of the lot area.
Chapter 10.20.40.70.(2), By-law No. 569-2013 The required minimum rear yard setback is 7.5 m. The proposed rear yard setback is 7.04 m.
Chapter 10.5.40.60.(1)(A)(i), By-law No. 569-2013 A platform without main walls, attached to or less than 0.3 m from a building, with a floor no higher than the first floor of the building above established grade may encroach into the required front yard setback 2.5 m if it is no closer to a side lot line than the required side yard setback of 1.8 m. The proposed platform encroaches 2.735 m into the required front yard setback and has a west side yard setback of 1.19 m.
Chapter 10.5.40.60.(3), By-law No. 569-2013 Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no closer to a lot line than 0.6 m. The proposed front yard stairs are 0 m from the front lot line and encroach 0.87 m into the public right of way. The proposed side yard stairs have an east side yard setback of 0.36 m.
Chapter 10.20.40.10.(4), By-law No. 569-2013 The permitted maximum height for a detached house with a flat or shallow roof is 7.2 m. The proposed height is 9.26 m.
Chapter 10.20.40.10.(4), By-law No. 569-2013 The permitted maximum number of storeys is 2. The proposed number of storeys is 3.
Chapter 10.5.40.70.(1), By-law 569-2013 The required minimum front yard setback is 5.045 m. The proposed front yard setback is 4.45 m.
Chapter 10.20.40.70.(3), By-law No. 569-2013 The required minimum side yard setback is 1.8 m. The proposed east side yard setback is 1.52 m.
Section 12.7, By-law No. 7625 The maximum permitted building height is 8 m. The proposed building height is 13.38 m.
APPENDIX 'A'
CONDITIONS OF APPROVAL
- The proposed dwelling shall be constructed substantially in accordance with the Site Plan, Landscape Plan, Front Elevation, Rear Elevation, East Elevation, and West Elevation in Appendix 'B' (Drawing Nos. A1, A1with landscape plan overlay, A2, A8, A9, A10 and A11), prepared by Battaglia Architect Inc. and dated January 23, 2023.
Any other variances that may appear on these plans that are not listed in this decision are NOT authorized.
The two west-facing windows on the upper-most storey shall be frosted glass (Drawing No. A11).
The owner shall apply for a permit to injure or remove City-owned and Privately-owned trees pursuant to the Municipal Code, Chapter 813, Articles II and III.
The Applicant shall provide an encroachment agreement to Transportation Services with respect to the stairs that encroach into the public right-of-way.
The Owner agrees to implement shoring during construction of the new dwelling, substantially in accordance with the shoring design prepared by Geomaple Geotechnics Inc. and dated July 18, 2022, in Appendix 'C', subject to the any modifications required through the building permit application process.
APPENDIX B
P