1254 Davenport Inc. (Re), 2023 ONTLAB 152

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-11-06

23 169309 S45 09 TLAB

1254 Davenport Inc. (Re), 2023 ONTLAB 152

DECISION AND ORDER

Issuance Date:

November 6, 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):

1254 DAVENPORT INC.

Applicant(s):

1254 DAVENPORT INC.

Property Address:

1254 DAVENPORT RD

COA File No.:

A0272/23TEY

TLAB Case File No.:

23 169309 S45 09 TLAB

Hearing Date(s):

October 24, 2023

Decision Delivered By:

TLAB Panel Member T. Yao

REGISTERED PARTIES AND PARTICIPANTS:

People Type

Representative

Applicant/ Appellant

1254 Davenport Inc

M. Mazierski

Participant, Party¹

E. Levitt, A. Herst

INTRODUCTION AND CONTEXT

11254 Davenport Inc (referred to as the “Owner”) seeks to tear down a freestanding garage and build a new two storey laneway house, (also called “a laneway suite”) at the rear of 1254 Davenport Rd. To do so, it requests the variances in Figure 2. On June 14, 2023, the Committee of Adjustment refused the variances; the Owner appealed and so this matter came to the TLAB for a new hearing.

2The primary building at 1254 Davenport is a three-storey apartment with two 1 BR and two 2 BR units. The rear garage must be accessed by a lane (Edward McIlwain Lane) and adjacent Davenport sister properties to the east are also served by rear garages. (The lane ends at 1254.) On the other side of the lane are the rear yards of Regal Road, the next street north of Davenport Road.

Figure 1. North elevation (facing 43 Regal Rd’s rear yard)

3Ms. Levitt and Mr. Herst, the rear (Regal Rd) neighbours, oppose the variances. Their house will be separated from the proposed laneway suite by their own rear yard and garage. They did not call a planner and were not opposed to laneway housing in general but preferred an earlier one-storey version of the same project, approved by the Committee of Adjustment in November 2022. (Neither the present planner nor lawyer working for 1274 Davenport Inc. were involved in this earlier design.)

4The key issue therefore is the second storey. Although there are other variances (e.g. soft landscaping and dormer width), Ms. Levitt and Mr. Herst had very little concern with those issues. The “originally” word in Figure 2 refers to the previous design.

THE LEGISLATIVE AND POLICY FRAMEWORK

5In carrying out its responsibilities under the Planning Act, the TLAB shall have regard to matters of provincial interest (Planning Act) as well as being satisfied that the development is consistent with the Provincial Policy Statement and conforms to the Greater Golden Horseshoe Growth Plan. While these are very high-level documents, both support laneway housing in urban municipalities (e.g., “settlement areas shall be the focus of growth”; “promotion of a range of housing types and densities to meet requirements of present residents” etc.).

Figure 2. Variances sought for 1254 Davenport Rd

		Required/Permitted	Proposed
1	Soft landscaping (rear yard)	85%	76% (originally 61-63%)
2	Soft landscaping (between laneway suite and lane)	75%	42% (originally 39 - 53%)
3	Distance between buildings	7.5 m	5 m
4	May not project through this plane		Entire 2nd floor and two thirds of ground floor are above angular plane
5	Width of dormer/bay feature,	May be no more than 30% of wall width	49% of laneway suite’s wall width
6	Height	4 m	7.47 m

6The variances must also comply with s. 45(1) of the Planning Act, applicable case law, and must individually and cumulatively meet all of the four tests for variances:

• maintain the general intent of the City of Toronto Official Plan;

• maintain the general intent of the City’s Zoning By-law;

• be desirable for the appropriate development or use of the land; and

• be minor.

Right to develop

7The obligation is on the Owner to demonstrate to the decision-maker that the tests are met on the balance of probabilities; there is no right to a variance.

EVIDENCE

8I heard from two witnesses: Mr. Uens, the Owner’s planner and qualified him as able to give opinion evidence in land use planning. Ms. Levitt and Mr. Herst testified on their own behalves. They did not call other witnesses, nor were they represented by a planner, lawyer or paralegal.

9I attended at the property and viewed the backyard and lane. This was not evidence but enabled me to appreciate the testimony at the hearing.

ISSUES AND ANALYSIS

10I grant the variances for two main reasons:

• broad support for this type of residential unit by all relevant policy documents from the Planning Act, ² Provincial Policy Statement, Growth Plan and Official Plan and

• the topography of the site negates concerns about privacy and overlook.

Broad policy support for laneway housing

11Laneway suites are an integral component of the Province and City’s attempt to provide “missing middle” housing options, i.e., neither single detached, nor high-rise condo. The relevant planning reports to Toronto City Council echo the Provincial Policy Statement and Growth Plan.³ Laneway suites permissiveness has expanded (introduced in 2018⁴, extended geographically in 2019 and tweaked in 2021).

12With respect to the height, there are three policies that I will refer to:

• the key Official Plan policy 4.1.5 was modified by Amendment 320 in December 2018.⁵ It is here that a “major street” is identified as supporting a “more intense form of development.⁶

• Contemporaneously with the initial introduction of the laneway suites zoning, Council adopted an Official Plan amendment (Policy 546) with language asking for enhanced due diligence in minor variance applications (e.g., with respect to private trees).⁷

• Originally Council limited laneway suite height to 4 m (13.1 ft). In November 2021 this rose to 6.3 m (20.7 ft), provided that the laneway suite was 7.5 m away from the main dwelling. Since the Owner’s suite is only 5 m away, it is restricted to the earlier height of 4 m instead of 6.3 m.

Height is measured from “average” grade”

Figure 3. Above: cross section; below: site plan

13Height and separation distance are intertwined because if the building is situated farther away, it benefits from a higher height permission. First, I deal with the technical measurement of height alone. Height is measured from a baseline, “average grade”⁸. Since the site is sloped, the ground at the front wall is lower than at the rear wall, and so the effective baseline is about halfway between the first-floor level and the basement. I marked this with the words “Approx. grade” in Figure 3. If the site were flat, the 7.47 m would be in 6.29 m, which is what the zoning would otherwise require. In other words, the 7.47 m translates to a 6.29 m building height if the property had been flat. I find that the intent of the zoning by-law is satisfied in this circumstance of the site’s topography.

14Ms. Levitt had concerns about her privacy. As set out previously, this concern is related to the separation distance since a 7.5 m separation distance permits a height of 6.3 m. The required separation distance is on the other side of the laneway suite. Ms. Levitt did not discuss this, but it is a necessary part of the planning analysis.

15Mr. Uens said no useful purpose would be served by increasing the distance since the slope of the rear yard is too inclined for active or passive recreation. The steps shown in the architect’s cross section (Figure 3) at the rear of the main building suggest that if a lawn chair were placed in the back yard, it might fall over, and Mr. Uens said that the site would be planted with a tree and a lot of shrubbery. I accept his evidence that the site is too steep for the usual purpose of a rear yard to provide recreation space.

Figure 4. Rear walls of 1254 Davenport and neighbours

16Furthermore Mr. Uens said that a 7.5 m building-to-building separation would not increase privacy or lessen overlook for apartment building at 1254 Davenport or its immediate east and west neighbours. This is because they have few or no rear facing windows. (Figure 5, previous page).

17The above discussion deals with the laneway suites windows on the south side., I turn now to the north side, where there are a number of windows facing Ms. Levitt. Mr. Mazierski, on behalf of his client, has agreed to have frosted class in the north-facing windows that will be most used by the future tenants. I find together with the observations that follow, that this might help to alleviate her concerns.

18I now return to the height issue in the context of the neighbourhood and Official Plan policy s. 4.1.5. This requires that the proposal should “fit into” the existing neighbourhood. The variances should “respect and reinforce” a number of enumerated characteristics, in particular:

e) prevailing location, design and elevations relative to the grade . . .. garages; and g) prevailing patterns of rear . . .yard setbacks . . .

19Within Mr. Uens’ comparison neighbourhood (31 houses), six already have building-to-garage distances comparable to the distance sought by the Owner.⁹ A neighbour of Ms. Levitt has roughly contemporaneous approval for a laneway suite with similar variances sought by the Owner. ¹⁰

20Mr. Uens said that the distance to the main building at 43 Regal exceeded 15 m (the sum of the two required rear yard setbacks of 7.5 and 7.5m) so the zoning bylaw does not contemplate that there should be restrictions on a proposed building at this distance from the rear yard of their house. In addition, the Owner has performed a shadow study that shows no impact on the main house since it is south of the laneway suite and any impact of either height or separation distance falls mainly on Edward McIlwain Lane. I find that Mr. Uens’ justification is convincing, and policy driven and thus the Levitt/Herst privacy concerns although sincere are met. In the next paragraphs, I detail further planning justifications put forward by Mr. Uens.

21I n my view the separation distances sought are already there and the sought for variance reinforces this characteristic. The variance enables a laneway suite that reinforces Council’s goal of using underutilized urban spaces to house people rather than cars. In short, I find the two variances are minor and a suitable use of the land, given that it is sloped and exists in a neighbourhood where there are some garages close the main building similar to what is sought, and there are no shadow implications.

Policy 546 issues

22This is a subset of the Official Plan that adds additional requirements for variance applications for laneway housing. It appears to me that this site is slightly outside the boundaries where 546 applies, but the Owner has offered, a sign of due diligence, to adhere to it, nonetheless. In this case, it offers to minimize injury to a neighbour’s white oak and install a wastewater heat recovery exchanger. I have added wording to the conditions to implement the Proponent’s offer. If the wording causes difficulty, would Mr. Mazierski please contact me at tlab@toronto.ca with notice to Ms. Levitt.

Major streets and increased density

23Major streets, simply put, are the way we residents get around Toronto. Although Figure 5 (below) is taken from the Official Plan, few Torontonians would have difficulty picking out Davenport Road even though it was not labelled as a major road. Moreover, local pedestrians may note that the north side of Davenport is comprised of low-rise apartments which is not true of the south side or for Regal Road. It is reasonable then to conclude that a laneway suite behind those apartment buildings would be seen as an optimum location for “missing middle” housing.

Figure 5: Major street map from Official Plan)

24This is reinforced by the zoning boundary in which a 0.6 density is permitted on Regal Road and 1.0 density on Davenport. I have also shown subway stations (“M”) on Figure 5; the nearest is easily accessible by an Oakwood bus, at the end of Edward McIlwain Lane. Accordingly, greater intensity maintains the “major streets” and “transit friendly” intents of the Official Plan and the urban settlement provisions of senior documents.

Conclusion

25I accept Mr. Uens’ testimony over Ms. Levitt’s and Mr. Herst’s. Since he (Mr. Uens) was the author or a contributor to some of the relevant laneway housing reports, I find that his evidence was more comprehensive, and evidence based.

26Some of his conclusions fit under more than one heading and he stated that the Plan must be read as a whole,¹¹ which results in some cross referencing and backtracking. I have found that Official Plan s. 4.1.5 and Policy 546 are complied with. The zoning by-law permits the height the Owner desires when compared to a flat site and explained how a greater separation distance means an undesirable trade-off between somewhat unusable green space and living space. A smaller suite probably not permit three bedrooms, suitable for families and persons in all walks of life. A three-bedroom apartment might be shared by a number of single persons, a multi-generational family or a combination, making the resulting accommodation if not affordable, at least more affordable. Affordable and near affordable rental housing are goals of the Official Plan and all senior documents. In short, I find this is a clear case of the statutory tests under the Planning Act being met.

DECISION AND ORDER

27The variances in Figure 2 are authorized on the following conditions:

1. The roof and main walls of the laneway suite shall be built substantially in accordance with Plan No. L001 (Site Plan) and Drawing No. L200 (Laneway –North Elevation) in the plans prepared by Solares Architecture, dated September 7th of 2023 on their face, and received by the Toronto Local Appeal Body on September 11th of 2023.

2. Opaque privacy screening that is permanent shall be added to the side second storey exterior deck located on the northern and southern edges of the exterior platform to a minimum height of 1.5 metres, measured from the floor of the balcony.

3. The applicant shall plant two medium sized trees in the front of the property and one large sized tree in in the rear of the property located between the proposed laneway suite and the main dwelling, each with a minimum diameter or 50mm (approx. 5cm) and located 1.5m away from any fences or surrounding structures to the satisfaction of the Director, Community Planning, Toronto, and East York District.

4. Opaque frosted glass shall be used for (bottom) half the height of the north facing kitchen window situated above the kitchen sink.

5. Permeable paver shall be used for the rear driveway and full extent of the parking space.

6. Submission of 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.

7. Plans shall show a wastewater heat recovery system.

T. Yao

Panel Member

Footnotes

1. 1I have used one line for these persons as they reside at the same address and have identical interests. Ms. Levitt elected to be a participant and Mr. Herst to be a party.
2. 2The Planning Act s. 16(3) of the Planning Act prohibits language in municipalities’ official plans which attempts to limit a third unit in ancillary structures. Also see 1,43 of the PPS and 2.2.14 of the Growth Plan.
3. 3The introductory words of a planning report justifying compliance with upper-level directives are: “Laneway suites are a type of second unit permitted in the City of Toronto. A laneway suite is a self-contained residential unit located in its own building, often in the back yard, on a lot adjacent to a public laneway. Laneway suites provide an additional form of low-rise housing within the City's neighbourhoods and are part of complete communities. They provide more opportunities for people to live close to where they work, shop, and play and, can help make the city's urban lanes more green, liveable, and safe. Laneway suites contribute to increasing the supply of rental housing and provide additional housing options for a variety of household configurations, and people in different stages of life.” (Report to Planning and Housing Committee, from Chief Planner and Executive Director, City Planning, Nov 9, 2021)
4. 4A good start to research on laneway suites can be found at a dedicated website “Toronto.ca/changinglanes. https://secure.toronto.ca/council/agenda-item.do?item=2018.TE33.3# (June 16, 2018)
5. 5It requires new developments “fit into” the existing neighbourhood fabric.
   4.1.5 Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular. . .prevailing heights, massing, scale, density . . .of nearby residential properties;
   prevailing location, design and elevations relative to the grade of driveways and garages;
   prevailing patterns of rear and side yard setbacks and landscaped open space; . . .
6. 6Lots fronting onto a major street, and flanking lots to the depth of the fronting lots, are often situated in geographic neighbourhoods distinguishable from those located in the interior of the Neighbourhood due to characteristics such as:
   • different lot configurations;
   • better access to public transit;
   • adjacency to developments with varying heights, massing and scale; or
   • direct exposure to greater volumes of traffic on adjacent and nearby streets.
   In those neighbourhoods, such factors may be taken into account in the consideration of a more intense form of development on such lots to the extent permitted by this Plan.
7. 7When permissions were expanded in 2019, Council adopted a concurrent OPA 460 (By-law 1209-2019 to adopt Amendment 460 respecting Laneway Suites in Neighbourhoods). OPA 460 contains Specific Area Policy 546 on policies with respect to variance applications. For the purposes of this case the salient policies concern trees and innovative technologies.
8. 8For ancillary buildings height is measured from average grade. The main building’s height is measured from “established grade” which is derived from adjacent properties so that the owner can’t manipulate it. Average grade is where the ground is around the walls of the ancillary building. (“(75) Average Grade means the average elevation of the existing or finished ground surface, whichever is lower, around all sides of a building or structure, measured where the building or structure meets the ground surface, excluding:. . .[certain exceptions].”
9. 9122. Within the immediate context, accessory structures are frequently located within roughly 5
   to 6 metres of the main house. This is the case on the following properties:
   • 1248 Davenport Road: 4.7 metres
   • 1240 Davenport Road: 5.0 metres
   • 1234 Davenport Road: 6.2 metres
   • 1230 Davenport Road: 6.0 metres
   • 23 Regal Road: 2.6 metres
   • 35 Regal Road: 5.7 metres
   • 43 Regal Road: 4.9 metres
   123. The previously existing garage on the subject site was also located roughly 5.5 metres from the main house. (Uens Witness Statement)
10. 10In May 2023 the Committee of Adjustment approved a suite beside the Levitt property with a separation distance of 4.97 m and height of 5.93 m.
11. 11Policies
    6(3)The Plan should be read as a whole to understand its comprehensive and integrative intent as a policy framework for priority setting and decision making. . . The Plan is more than a set of individual policies. Policies in the Plan should not be read in isolation or to the exclusion of other relevant policies in the Plan. When more than one policy is relevant, all appropriate policies are to be considered in each situation. The goal of this Plan is to appropriately balance and reconcile a range of diverse objectives affecting land use planning in the City. (Official Plan Ch 5)