Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2023-11-30
23 172266 S45 02 TLAB
Lem (Re), 2023 ONTLAB 162
DECISION AND ORDER
Issuance Date:
November 30, 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):
J. LEM
Applicant(s):
IN ROADS CONSULTANTS
Property Address:
17 COURTSFIELD CRES
COA File No.:
23 123401 WET 02 MV (A0195/23EYK)
TLAB Case File No.:
23 172266 S45 02 TLAB
Hearing Date(s):
November 24, 2023
Decision Delivered By:
TLAB Vice-Chair A. Bassios
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
J. LEM
A. PLATT
A. WHITE
Applicant
IN ROADS CONSULTANTS
Party
CITY OF TORONTO
M. LAFORTUNE
A. WARD
Expert Witness
F. ROMANO
INTRODUCTION AND CONTEXT
1This is an Appeal of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for variances for the property known as 17 Courtsfield Cres (subject property).
2The purpose of the application is to construct a new detached dwelling with an integral garage. The subject property is located in the Edenbridge – Humber Valley neighbourhood of the former City of Etobicoke.
3The subject property is designated Neighbourhoods in the City Official Plan (OP) and zoned RD (f15.0; a555; d0.45)) under Zoning By-law 569-2013.
4The Applicant appealed the COA refusal of their requested variances. The City elected Party status in the Appeal. An interim TLAB Decision granted an adjournment of the previously scheduled Hearing so that the two Parties might discuss a potential settlement of their differences.
5The Parties were able to come to an agreement, and a revised Expert Witness Statement was submitted by Mr. Romano in support of the revised application.
6On the rescheduled Hearing date (November 24, 2023), I advised the Parties that the revised proposal would not be considered as a settlement of the issues as the Appeal was launched by the Applicant, and the City elected Party status in the Applicant’s Appeal of the COA refusal.
7I confirmed with the Parties present that the revised proposal would be tested according to the requirements of the statute, as a (now) uncontested Appeal, and would not be accorded the deference that it would have been allowed had the City been the Party to initiate an Appeal of the COA decision.
8The revised proposal requested only one variance:
Section 10.20.40.40.(1)(A), By-law 569-2013
The maximum permitted floor space index is 0.45 times the lot area (287.55 m²).
The proposed dwelling will have a floor space index of 0.61 times the lot area
(387.94 m²).
9I advised those present at the Hearing that, in accordance with Council direction, I had attended at the site and the surrounding area and that I had reviewed the pre-filed materials in preparation for the hearing of their evidence.
THE LEGISLATIVE AND POLICY FRAMEWORK
10Provincial 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.
11Variance – 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
12Mr. Romano provided evidence in support of the revised proposal which requires one variance, for floor space index (FSI).
13Mr. Romano described the revised proposal as follows:
The subject site is an irregular, almost pie-shaped residential lot with a longer rear lot line than front.
The revised plans represent cooperative discussions with City staff and eliminated six of the variances that had been before the COA.
The neighbourhood surrounding the subject property can be described as suburban.
14Mr. Romano identified a neighbourhood study area and an immediate context in accordance with the direction of OP Policy 4.1.5.
ISSES AND ANALYSIS
15The only variance required to facilitate the revised proposal is a variance for floor space index (FSI).
16I 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 for the subject area.
GENERAL INTENT AND PURPOSE OF THE OFFICIAL PLAN
17Mr. Romano noted the relevant policies of the Official Plan, with particular reference to OP Policy 4.1.5 which contains development criteria that are intended to give greater specificity regarding the expectation for development in Neighbourhoods.
18The criterion which most directly engages the variance for FSI is OP Policy 4.1.5c:
Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:…
c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties;
19The proposed height is within the maximum permitted by the Zoning By-law and no variance for height is required. The type of dwelling proposed is the same as the surrounding houses. The determination to be made is whether the proposed FSI results in a building that respects the massing, scale and density prevailing in the surrounding neighbourhood.
20OP Policy 4.1.5 directs that the prevailing building type and physical character of a geographic neighbourhood will be determined by the most frequently occurring form of development in that neighbourhood.
21Mr. Romano has attempted to establish the most frequently occurring density/ FSI in the neighbourhood through a quantitative analysis.
22Mr. Romano accessed the two City datasets which contain information describing property configuration and building dimensions: City property data and Decisions of the COA. Both of these datasets have their limitations but they are all that is generally accessible for the purposes of statistically describing the prevailing character of a neighbourhood.
23Mr. Romano provided a table of variance decisions for the broader neighbourhood. The table captures decisions over the past 12-15 years. Of note is that the table does not identify any variances applied for, or approved, on Courtsfield Cres within the timeframe for which data is available. The table identified some FSI variances in the broader neighbourhood of the same magnitude as requested in this matter.
24In his photographic evidence, Mr. Romano documented the general massing and style of the neighbourhood, which while varied, consist of many examples of two storey buildings with a larger footprint. He noted that some of the features of the original homes and building footprints would not be permitted under the current by-law.
25In order to illustrate the disconnect between the original construction in the immediate context and the current by-law requirements, Mr. Romano analyzed property data for the immediate context, calculating lot area and building footprint from the City’s Geographic Information System database and thereby calculating lot coverage. Mr. Romano concluded that from his calculation approximately half of the properties on Courtsfield Cres exhibit lot coverages that exceed the permitted maximum in the current By-law.
26While the measurement of lot and footprint dimensions by this method cannot be considered precise, (at the level of accuracy of a survey, for example), it is in my opinion sufficient to illustrate the general conclusion that many of the houses in the immediate context exceed the 33% lot coverage which the current By-law permits. I accept Mr. Romano’s position that the mapped property parcels and the footprints derived from GIS data are generally more current as they are updated from areal imagery.
27Mr. Romano extended his analysis by applying the gross floor area (GFA) identified in the City property data to his calculated lot area in order to estimate FSI numbers for the properties in the immediate context. He has provided a summary paragraph of this estimation in his Expert Witness Statement, but has not provided a property by property estimate.
At least 29% of properties (12 of 42 properties with statistics) have a residential GFA larger than 0.45 times the lot area. Over half (approximately 55%) have a residential GFA of 0.40 times the lot area or larger.
28While I find the extension of Mr. Romano’s method to estimate FSI a worthwhile exercise in the circumstances, I am less persuaded by the usefulness of this projection since his starting premise was that the collected data is either inaccurate or outdated. The gaps in the data and the inconsistencies in what has been counted into the GFA in each case render any conclusions derived from this GFA data theoretical, at best.
29My final concern with Mr. Romano’s analysis is that his conclusion describes the inconsistency of the data, and the likely underestimation of the prevailing FSI, by testing his estimates against the maximum permitted FSI in the Zoning By-law (0.45 FSI). Even while I concur with his assertion that the prevailing FSI’s in the immediate context are likely higher than what might be deduced from the COA decision table, or the City property data, and may exceed the maximums in the By-law, the central question is whether the proposed building, at 0.61 FSI falls within that prevailing in the neighbourhood.
30Mr. Romano, to be fair, is working within the constraints of the data which is available to him. To be fair to the City as well, the data the City collects is for other and general purposes and is not intended to support the kind of focused analysis that would precisely define the prevailing FSI in the neighbourhood or immediate context.
31I accept Mr. Romano’s premise that the existing houses in the immediate context likely exceed the maximums permitted for coverage and FSI in the Zoning By-law, and therefore that less weight should be given to the fact that there have been no variances requested in the immediate context over the past 12 – 15 years. Even if I accept Mr. Romano’s premise that the prevailing density of the surrounding homes is greater than the By-law maximum (0.45), Mr. Romano has not been able to situate his client’s proposal, at 0.61, in that context.
32Along with an analysis of the prevailing density (FSI) in the neighbourhood (which leans into a quantitative analysis), OP Policy 4.1.5 c) directs that the massing and scale of the proposal respect and reinforce the neighbourhood.
33Mr. Romano’s photographic evidence has provided numerous examples of front elevations in the neighbourhood similar to what is proposed. There are numerous examples of prominent and projecting garages on Courtsfield Cres, reflecting the suburban style of the original construction. The façade of the proposal is not inconsistent with those examples.
34The properties on Courtsfield reflect the crescent alignment of the road, as do the existing houses. The rear wall of the house on the property to the east of the subject property will continue to extend further into the rear yard than is proposed for the subject property, albeit at an angle reflecting the curve of the crescent.
35The purpose of OP Policy 4.1.5 c) is to regulate the development of a property that is out of scale and of inconsistent with the massing of the surrounding properties.
36I recognize that significant changes have been made to the proposal to accommodate the City’s concerns. I find that the façade and elevation of the proposal are in keeping with the streetscape, the rear wall alignment is similarly reflective of the existing houses and the height is consistent with the permitted height and the context in general. I find that the massing and scale of the revised proposal have been adapted to fit the immediate context.
37I am satisfied on the basis of the evidence that, on balance, the massing, scale and density of the proposal fits the immediate context and the broader neighbourhood. I therefore find that the proposal maintains the general intent and purpose of the Official Plan.
GENERAL INTENT AND PURPOSE OF THE ZONING BY-LAW
38I accept Mr. Romano’s evidence that the proposed GFA, and resulting FSI, are appropriately deployed on the lot within a building footprint and volume that is articulated and located within setbacks, building length, building depth, height and lot coverage.
39For the same reasons outlined above, I find that the revised proposal maintains the general intent and purpose of the Zoning By-law.
MINOR
40The test for “minor” focuses on the scale and nature of perceived impact caused by the variances. The courts have established that the test is not that there be no impact, but that the imputed impact rises to the level of being an undue adverse impact of a planning nature.
41I have been presented with no evidence of any undue adverse impact. I note that I heard no opposition to the proposal from surrounding neighbours.
42I find that the revised proposal meets the test of “minor”.
DESIRABLE FOR THE DEVELOPMENT OF THE LAND
43For the reasons outlined above, I find that the proposal is desirable for the development of the land.
CONCLUSION
44The proposal has been significantly revised from what was refused by the COA. Previously requested variances for lot coverage, building height, main wall height, number of platforms, second storey platform area and parking space width have been eliminated and the remaining variance for FSI has been reduced. I find that the revisions that have been made to the application that was considered by the COA, to be beneficial. I therefore find that no further notice is required in accordance with s.45(18.1.1) of the Planning Act.
45I find that the proposal, as revised through agreement of the City, maintains the general intent of the Official Plan and the Zoning By-law, is Minor and Desirable for the development of the land.
DECISION AND ORDER
46The Appeal is allowed, in part. The variances listed in Appendix A are authorized, subject to the conditions contained therein.
A. Bassios
Panel Chair
APPENDIX A
VARIANCE:
Section 10.20.40.40.(1)(A), By-law 569-2013
The maximum permitted floor space index is 0.45 times the lot area (287.55 m²).
The proposed dwelling will have a floor space index of 0.61 times the lot area
(387.94 m²).
CONDITIONS:
The owner shall be required to submit 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.
Where there is no existing street tree, the owner shall provide payment in lieu of planting of 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.
The proposed dwelling shall be constructed substantially in accordance with the following plans and drawings, as prepared by Classic Design Inc., dated September 22, 2023, and attached hereto.
Site Plan (A1)
Roof Plan (A5)
South Elevation (A6)
North Elevation (A7)
West Elevation (A8)
East Elevation (A9)
Any other variances that may appear on these plans that are not listed in this decision are NOT authorized.