Salcman (Re), 2023 ONTLAB 165

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-12-07

23 180619 S45 08 TLAB

Salcman (Re), 2023 ONTLAB 165

Issuance Date:

December 7, 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):

Applicant(s):

Property Address:

8 ROBERTA DR

COA File No.:

23 147099 NNY 08 MV (A0266/23NY)

TLAB Case File No.:

23 180619 S45 08 TLAB

Hearing Date(s):

November 27, 2023

Decision Delivered By:

TLAB Panel Member R. Kanter

People Type

First Initial. Last Name

Representative

Applicant

Sarah Ifrah Architect

Appellant

S. Salcman

S. Leisk

J. Evola

Expert Witness

M. Rendl

INTRODUCTION AND CONTEXT

1On May 9, 2023, Sarah Ifrah (the “Applicant”) applied to the City of Toronto (City) Committee of Adjustment (COA) for eleven variances, to construct a new detached dwelling (the “Application”) at 8 Roberta Drive (the “Site”). The Application was accompanied by plans prepared by the Applicant showing a building length of 19.94 metres.

2On June 27, 2023, Community Planning, North York District, submitted a Staff Report to the COA recommending that four variances: building height, side exterior wall height, first floor height and number of stories (collectively, the “Height Variances”) be refused, since they are not consistent with the existing physical character of the neighbourhood (the “Staff Report”).

3On July 6 and July 7, 2023, Toronto Urban Forestry and Transportation Services provided comments proposing conditions should the Application be approved.

4On July 13, 2023, the Committee of Adjustment issued a decision refusing the Application, including a variance for a building length of 17.6m. (the “COA Decision”).

5On August 8, 2023, the Applicant appealed the COA Decision (the “Appeal”) to the Toronto Local Appeal Body (TLAB) on behalf of S. Salcman (the “Appellant”).

6On October 11, 2023, Toronto Building provided a zoning notice identifying eleven variances to Zoning By-law 569-3013 (the “ZBL”), including a variance in building length of 19.94 metres.

7On November 27, I heard the Appeal as the presiding panel Member of the Toronto Local Appeal Body (the “TLAB”).

THE LEGISLATIVE AND POLICY FRAMEWORK

8Provincial 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.

9Variance – 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

10Counsel for the Applicant called Martin Rendl as a witness. I qualified Mr. Rendl as an expert in the field of land use planning. I entered his Expert Witness Statement as Ex. 1, and the supporting documents as Ex. 2 (a),(b),(c),and (d).

11Mr. Rendl described the proposed development in general terms as a larger house suitable for a large, young and growing family.

12Mr. Rendl explained that the height variance arose largely as a result of a design decision to include an integral garage at grade. Locating the garage at grade requires considerable height above grade, so that Toronto Buildings considers the living area above the garage as the second floor, and the living area above that as the third floor. He further explained that while the total building height variance is .75m, only .3m would be visible from the street.

13Mr. Rendl also explained that the side wall height variance applied to only a small portion of the walls to the top of the dormer windows. The variance for the height of the first floor was not visible from the outside. The variance allowing three stories instead of two resulted from Toronto Building Staff’s definition of “first floor”. The building would look like a two-story building, given the location of the entrance and windows. He also noted that a restriction on the number of stories was limited to sites in the former municipality of North York, rather than other parts of Toronto.

14Mr. Rendl stated that the building length and depth resulted largely from the design of a small breakfast nook at the center of the rear of the house. The main portion of the front and rear walls were consistent with houses to the east and west. The reduced front yard setback resulted from the curve in the street in front of the Site, and the front wall would also line up with its neighbours.

15The planner stated that the increased driveway width applied only to a portion of the driveway adjacent to the garage door. The requested variance for soft landscaping was negligible, resulting in almost 73% soft landscaping instead of the 75% required by the ZBL in the front yard. The front and rear decks would not result in any overlook or privacy concerns.

16Mr. Rendl stated that there were no objectors at the COA hearing or the Hearing before TLAB. The owners of 6 Roberta and 10 Roberta, immediately east and west of the Site, provided letters of support.

17Mr. Rendl reviewed his neighbourhood study area consisting of more than 600 properties. He provided photos showing that there was considerable residential replacement with new detached dwellings with physical characteristics similar to the Application. He also provided a chart showing that variances for building length, depth, and front yard setback were within the range of variances approved in the neighbourhood.

18Mr. Rendl conceded that variances for building height, side wall height and first floor height exceeded other variances approved in the area. However, it was his evidence that the Application was carefully designed to fit the neighbourhood and further the objectives of providing a range of family housing without resulting in destabilization.

19Mr. Rendl provided his planning opinion that the requested variances are consistent with the Provincial Policy Statement 2020 and conform to the Growth Plan.

20Mr. Rendl also opined that the requested variances meet the four tests under S. 45 (1) of the Planning Act. They maintain the general intent and purpose of the Official Plan and ZBL. The Application was desirable since it meets the needs for larger houses for large families common in this neighbourhood, and is minor since it has no undue adverse impact.

ISSUES AND ANALYSIS

21The main issue in this case is whether the Height Variances maintain the general intent and purpose of S. 4.5.1 of the Official Plan (the “OP”).

22Mr. Rendl conceded that the Height Variances requested are not prevailing in the sense of being the most frequently occurring in the neighbourhood. He also agreed that several examples of increased building height provided in Ex. 1 Appendix D, namely 55 Roberta and 38 Brookview were approved but not built, and so could not be described as constituting the existing physical character of the neighbourhood.

23However, Mr. Rendl maintained that the proposed Height Variances met the quantitative tests in the OP. The increased building height visible from the street was relatively small at .33m. The increase inside wall height was limited to a small area featuring dormers. The first-floor height was not visible from the street. The increase in the number of storeys resulted from a technical interpretation of “first floor” by City Building Department staff, and it would not be considered a 3-story building by neighbours.

24Mr. Rendl also emphasized the qualitative nature of the Planning Act tests for variances. S. 45 (1) of the Planning Act requires that minor variances maintain the general intent and purpose of the OP and ZBL, rather than requiring variances to conform or comply with those planning instruments.

25Mr. Rendl also emphasized the comprehensive and qualitative aspects of the OP. He noted that Policy 1.5 requires the OP to be read as a whole. Policy 2.3 acknowledges that Neighbourhoods will not stay frozen in time, and Policy 4.1 speaks to maintaining Neighbourhoods through compatible development and avoiding development that would result in destabilization.

26According to Mr. Rendl’s oral evidence, which I probed at the Hearing, requiring new development to “respect and reinforce” prevailing heights and other physical characteristics does not necessarily require conformity. Nor does it require consistency with prevailing heights, as proposed by the Planning? Staff’s Report. I don’t think this sentence is necessary.

27I agree with Mr. Rendl that this application requires careful consideration from both a quantitative and qualitative perspective. I find that proposal meets the OP requirements with respect to quantitative criteria. It very clearly meets the qualitative considerations of the OP, by mirroring, albeit on a slightly larger scale, physical characteristics already found in the neighbourhood thereby respecting and reinforcing the existing physical character of the neighbourhood. Consequently, it ...meets the test of maintaining the general intent and purpose of the OP.

28I further agree with Mr. Rendl that the Application maintains the general intent and purpose of the ZBL, is minor and desirable.

CONCLUSION

29I find that the Application meets the statutory tests for variances under Section 3 and 45 (1) of the Planning Act.

DECISION AND ORDER

30The Appeal is allowed; the Variances listed below are authorized, subject to the conditions contained herein:

Chapter 10.20.40.20.(1), By-law No. 569-2013

In the RD zone with a minimum required lot frontage of 18.0 metres or less, the permitted maximum building length for a detached house is 17.0 metres. The proposed building length is 19.94 metres.

Chapter 10.20.40.30.(1), By-law No. 569-2013

The permitted maximum building depth for a detached house is 19.0 metres. The proposed building depth is 19.94 metres.

Chapter 10.20.40.10.(2)B)(I), By-law No. 569-2013

The permitted maximum height of all side exterior main walls facing a side lot line is 7.5m. The proposed height of the side exterior main walls facing a side lot line is 9.29m.

Chapter 10.20.40.10.(1)A), By-law No. 569-2013

The permitted maximum height of a building or structure is 10m. The proposed height of the (building/structure) is 10.75m.

Chapter 10.5.100.1.(1)C), By-law No. 569-2013

For a detached house, semi-detached house, or duplex, and for an individual townhouse dwelling unit if an individual private driveway leads directly to the dwelling unit, a driveway that is located in or passes through the front yard may be for lots with a lot frontage of 6.0m to 23.0m inclusive, or a townhouse dwelling unit at least 6.0m wide, a maximum of 5.97m wide. The proposed driveway is 6.55m wide.

Chapter 10.5.50.10.(1)D), By-law No. 569-2013

On a lot with a detached house, semi-detached house, duplex, triplex, fourplex or townhouse, a minimum of 75 percent of the required front yard landscaping must be soft landscaping. The proposed front yard soft landscaping area is 72.72 percent.

Chapter 10.20.40.10.(6), By-law No. 569-2013

In the RD zone, for a detached house or a semi-detached house, the permitted maximum height of the first floor above established grade is 1.2m. Proposed first floor height is 2.74 m.

Chapter 10.20.40.70.(1), By-law No. 569-2013

The required minimum front yard setback is 7.57m. The proposed front yard setback is 6.94m.

Chapter 10.20.40.50.(1)A), By-law No. 569-2013

The permitted maximum number of platforms at or above the second storey located on the (front/rear) wall of a detached house is 1. The proposed number of platforms located on the (rear) wall is 2.

Chapter 10.20.40.50.(1)B), By-law No. 569-2013

The permitted maximum area of each platform at or above the second storey of a detached house is 4.0m². The proposed area of rear deck at the second storey is 24m². The proposed area of the front porch is 12.44m².

11.Chapter 10.20.40.10.(3) A), By-law No. 569-2013

The permitted maximum number of storeys is 2. The proposed number of storeys is 3.

31Conditions of Approval

The owner submit a revised Site Plan which demonstrates compliance with the following to the satisfaction of Transportation Services: a. The section of the driveway within the public right-of-way must have a consistent maximum width of 6.0 m and must be setback a minimum of 1.0 m from the outer edge of the hydro pole. b. Include a notation stating that the owner will be required to obtain all permits from the Permits and Enforcement unit of Transportation Services prior to the construction of the proposed dwelling. c. Include a notation stating that all portions of existing access driveways that are no longer required must be closed and restored with soft landscaping and full concrete curbs, to the satisfaction of and at no cost to Transportation Services.
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 construction be substantially in accordance with the Site Plan (A1), Landscape Calculation (A1b) and Elevations (A7, A8. A9 and A10) prepared by Sarah Ifrah Architect Inc. dated March 7, 2023, and attached herein.

R. Kanter

Panel Member