Stojanovic (Re), 2023 ONTLAB 160

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-11-29

23 147076 S53 05 TLAB

23 147077 S45 05 TLAB

23 147079 S45 05 TLAB

Stojanovic (Re), 2023 ONTLAB 160

Issuance Date:

November 29, 2023

PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s):

Applicant(s):

Property Address:

29 DE MARCO BLVD

COA File No.:

22 142127 WET 05 CO (B0026/22EYK)

22 142136 WET 05 MV (A0281/22EYK)

22 142144 WET 05 MV (A0282/22EYK)

TLAB Case File No.:

23 147076 S53 05 TLAB

23 147077 S45 05 TLAB

23 147079 S45 05 TLAB

Hearing Date(s):

September 12 & 28, 2023, October 2 & 18, 2023

Deadline Date for Closing Submissions/Undertakings:

August 28, 2023

Decision Delivered By:

TLAB Panel Member S. Makuch

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

S. Stojanovic

Appellant

S. Stojanovic

A. Stewart

Party (TLAB)

City of Toronto

J. Dexter

Party (TLAB)

A. M. Da Eira

Party (TLAB)

S. Nunez

D. Al-Janaby

Expert Witness

N. Deibler

Expert Witness

F. Romano

INTRODUCTION AND CONTEXT

1This is an appeal by the owner of 29 De Marco Blvd. from a decision of the Committee of Adjustment refusing a consent to divide a lot into two undersized residential lots. The existing dwelling is to be demolished and the property is to be redeveloped with a new detached dwelling with an integral garage, on each of the two proposed lots. The lot frontage for one lot is to be 15.85 m and the lot area 303.46 m². The lot frontage for the other lot is to be 11.58 m and the lot area 377.48 m². The minimum permitted frontage is 15m and the minimum permitted lot area is 550. A number of other variances were also sought including variances respecting: lot coverage, and set backs for both proposed dwellings.

2The City and two neighbours opposed the appeal. The planning evidence was presented by two land use planners, one on behalf of the City and the other on behalf of the owner. The two neighbouring property owners gave evidence on their own behalf.

THE LEGISLATIVE AND POLICY FRAMEWORK

The following sets out the general legislative provisions governing this matter.

3Provincial 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 for the subject area (‘Growth Plan’).

4Consent – S. 53

TLAB must be satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Act and that the application for consent to sever meets the criteria set out in s. 51(24) of the Act. These criteria require that " regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2 of the Planning Act;

(b) whether the proposed subdivision is premature or in the public interest;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

(f) the dimensions and shapes of the proposed lots;

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(h) conservation of natural resources and flood control;

(i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).

5Variance – 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.

6In this matter, however, the significant issues relate to the minor variances to frontage and lot area. If these variances meet the general intent of the official plan then the requirements respecting provincial policy I find would be met. More importantly, if the lot frontage and lot area variances are not approved then the consent would contrary to the zoning bylaw and the official plan and should not be granted. The consent would not conform to the official plan. The relevant policy of the official plan was that the consent and variances should respect and reinforce the physical character of the area. Based on the evidence and the reasons outlined below I find the variances and consent should not be granted as the frontage of the smaller lot and the areas of both lots do not meet that policy.

SUMMARY OF EVIDENCE

7Oral evidence was provided by two expert planners who were qualified to give opinion evidence, one on behalf of the City and one on behalf of the appellant. In addition, oral evidence was also given by two neighbours in opposition and by the appellant himself in support of the appeal. The evidence of the two planners is set out in the witness statements file. Their oral evidence focused largely on lot frontage and lot size, as summarized below.

8The City planner’s evidence was based in part on work prepared by other City employees and contained some errors. It examined the broader and immediate neighbourhood context and demonstrated that there were few frontages as small as 11.58 m and few lots as small in area as 303.46m2 and 377.48 m2 and indeed none in the immediate context with a frontage as small as 11.58 m2 or an area as small as 303.46m2 or 377.7m2. Both lots would be among the smallest in area and would be of an irregular shape and one lot smallest in frontage. In his opinion the proposed small lot frontages and lot areas sizes do not respect and reinforce the physical character of the area since the vast majority of the lot areas are larger than those proposed and, similarly, the lot frontages are larger than 11.58m.

9The evidence of the planner for the applicant, while pointing out errors in the City’s evidence, did not find a significant number of additional lots with larger frontages or areas. His evidence pointed out that lot frontages and sizes changed at different locations in the area and particularly where streets curved. In his opinion the neighbourhood had a character of mixed frontages and areas. He also pointed out, for example, that there are lots of larger and small sizes side by side, numerous irregular shaped lots, and smaller lot frontages to the west although these were not in his neighbourhood study area. In his opinion this was a low-rise residential area and the proposed lots would fit in it. In his view, a reliance on numerical frontage and area statistics were not a basis to determine whether the proposed development “fit” in the area. A more subjective evaluation taking into account the mix of larger and smaller lots and frontages was more appropriate. He noted that there is no official plan policy against small lots and that the size of the current lot was very large and could be seen as out of keeping with the character of the area. He also noted that the size of lots is generally not observable from the street.

10Neither planner had serious concerns regarding the other variances sought. The setbacks did not cause any significant impacts. The rear yard setbacks only applied to a small portion of the proposed dwellings. No significant shadow impacts were suggested by the planners. The lot coverage was not found by either planner to be unacceptable. The major disagreement between the was whether the lot frontage and lot size were acceptable. Although there was some evidence regarding the destruction of trees there was no clear evidence that trees had been destroyed intentionally so as to ensure approval of the application. Plans were revised to remove a rear deck and to delete a side yard setback.

11The evidence of the neighbour at 31 De Marco related to tree destruction, privacy, and shadow. As stated above the evidence regarding tree destruction was inconclusive. The evidence respecting privacy and shadow was unpersuasive. There were no privacy or shadow impacts significantly different from an as off right building in spite of a reduction in the side yard setback. This neighbour’s front door would face the side of any dwelling constructed on the current lot or severed lot.

12The neighbour to the rear also had concerns about tree destruction and setbacks. In addition, he was concerned about drainage as the current lot is at a higher elevation than his lot. None of these concerns were persuasive. The evidence respecting tree destruction was unclear; the setbacks he questioned were the rear yard setbacks of the proposed houses. These setbacks only affected a very small triangle of the proposed dwellings as the rear lot line ran on an angle. Concerns regarding drainage were not pertinent to consideration of the variances because drainage is subject to provisions of the Building Code and off-site drainage is not permitted.

ISSUES AND ANALYSIS

13As indicated the essential issues in this matter relate to lot frontage and area. I found the evidence of the planner for the applicant attractive, and agree that this proposal would result in two residential dwellings and thus could fit in the neighbourhood. However, a visit to the area, which I informed the parties I would make, reinforces my preference for the City planner’s evidence. The character of the area is not one of lots as narrow as that proposed. The lot of 11.58 frontage would indeed stand out, not fit, and not respect the physical character of the area. The neighbourhood is, as the City’s evidence demonstrates, one of wider lots. Similarly, its character is one of larger lots than proposed. The City’s evidence that the proposal would be among the narrowest and smallest lots is compelling. The small lot area of 303.46m2 in this case would stand out, not only because of the narrowness of one of the lots, but also because of the curve in the street where the lots would be situated.

14The removal of the rear deck, and deletion of a setback have no impact on the major issues of lot frontage and area. Moreover, although the additional variances respecting setbacks, in and of themselves, are not problematic and a proposal for two lots in and of itself, is not inconsistent with provincial policy, the lot frontage and lot area do not conform with the fundamental Neighbourhoods policy of the Official Plan or its general intent that development should respect and reinforce the physical character of the area.

CONCLUSION

15I conclude, therefore, that the variances respecting lot frontage and area should not be granted on the basis that the proposal does not respect and reinforce the Official Plan and the Zoning By-law. As a result, the consent will not be granted on the basis that it does not conform to the Official Plan (s.51(24)c), and none of the other variances should be granted as the development should not proceed on lots of the proposed size and frontage.

DECISION AND ORDER

16The appeal is dismissed, and the decision of the Committee of Adjustment is upheld.

S. Makuch

Panel Member