Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-12-06

23 161116 S45 18 TLAB,

23 161117 S45 18 TLAB,

23 161119 S53 18 TLAB

Ng (Re), 2023 ONTLAB 166

FINAL DECISION AND ORDER

Issuance Date:

December 6, 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):

L. Ng

Applicant(s):

Vivid Design & Architectural Consulting

Property Address:

303 Bogert Ave

COA File No.:

23 105906 NNY 18 MV (A0062/23NY),

23 105907 NNY 18 MV (A0063/23NY),

23 105903 NNY 18 CO (B0003/23NY)

TLAB Case File No.:

23 161116 S45 18 TLAB,

23 161117 S45 18 TLAB,

23 161119 S53 18 TLAB

Hearing Date(s):

November 20, 2023

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

Vivid Design & Architectural Consulting

Appellant

L. Ng

A. Stewart

Expert Witness

F. Romano

INTRODUCTION AND CONTEXT

1Lisa Ng (the “Owner”) is the owner of 303 Bogert Avenue (the “Property”). It is currently improved with a modest single-family dwelling. The Owner wishes to demolish that dwelling, divide the Property in two and construct two new single-family dwellings on the resultant parcels.

2To achieve that objective, the Owner filed applications with the Committee of Adjustment (the “Committee”) for consent to sever and for various heads of zoning variance relief regarding lot size and construction performance standards.

3The Committee refused all three applications.

4The Owner appealed those refusal decisions and now the disposition of those appeals is before the Toronto Local Appeal Body (the “Tribunal”).

5The Owner appeared before the Tribunal represented by counsel, Amber Stewart. Ms. Stewart called expert planning evidence though Franco Romano, a seasoned land use planning consultant well known to the Tribunal. In advance of the hearing, Mr. Romano filed an extensive witness statement with full supporting material.

6Ms. Stewart also called expert arboricultural evidence through a filed witness statement of Davide Carnevale and his oral testimony at the hearing.

7No other persons elected to be a Party or Participant in the appeal proceeding and none appeared at the hearing other than persons associated with the Owner.

THE LEGISLATIVE AND POLICY FRAMEWORK

8Provincial Policy – S. 3, Planning Act

A decision of the Tribunal must be consistent with the 2020 Provincial Policy Statement (‘PPS’) and conform to the Growth Plan for the Greater Golden Horseshoe, 2020 (‘Growth Plan’).

9Consent – S. 53, Planning Act

The Tribunal 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;

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(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).

10Variance – S. 45(1), Planning Act

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

11As noted above, the planning evidence in the proceeding was delivered by Franco Romano, who was qualified to offer opinion evidence on land use planning by reason of his registration as a Registered Professional Planner, his education and his extensive professional experience.

12Mr. Romano provided a description of the general neighbourhood, as that term is defined in Policy 4.1.5 of the City Official Plan (“OP”).

13His summary opinion of the severance and development proposal was that it represents a reasonable, gradual form of development that fits with the existing physical character and is in keeping with the overall physical character of the entire neighbourhood. In his view, the proposed development will respect and reinforce the general physical patterns in the neighbourhood.

14Mr. Romano advised that the Property, which has an existing lot frontage of 15.24m, is proposed to be divided into two equal parcels, each of which will have a lot frontage of 7.62m and a lot area of 255.68m2.

15Mr. Romano reviewed the required variances, as follows (all of which will collectively hereinafter be referred to as “the requested variances”):

Part 1 (East Lot)

1. Chapter 10.5.40.50(2), By-law 569-2013

A platform without main walls, such as a deck, porch, balcony or similar structure, attached to or within 0.3m of a building, must comply with the required minimum building setbacks for the zone: 1.80m.

The proposed rear deck is setback 1.2m from the east side lot line.

2. Chapter 10.5.40.60(1)(A)(i), By-law 569-2013

A platform without main walls, attached to or less than 0.3m 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 2.5m if it is no closer to a side lot line than the required side yard setback: 1.8 metres.

The proposed front platform is 0.62m from the west side lot line.

3. Chapter 10.5.40.60(7), By-law 569-2013

Roof eaves may project a maximum of 0.9m provided that they are no closer than 0.30m to a lot line.

The proposed eaves and eavestrough are 0.16m from the west side lot line.

4. Chapter 10.20.30.10(1)(A), By-law 569-2013

The required minimum lot area is 550 square metres.

The proposed lot area is 255.66 square metres.

5. Chapter 10.20.30.20(1)(A), By-law 569-2013

The required minimum lot frontage is 15m.

The proposed lot frontage is 7.62m.

6. Chapter 10.20.30.40(1)(A), By-law 569-2013

The permitted maximum lot coverage is 30% of the lot area.

The proposed lot coverage is 32% of the lot area.

7. Chapter 10.20.40.10(2)(A), By-law 569-2013

The permitted maximum height of all side exterior main walls is 7.5m for at least 70% of the total width of each main walls.

The proposed side main walls are 7.49m for 45% of the width of east side main walls.

8. Chapter 10.20.40.10(2)(A), By-law 569-2013

The permitted maximum height of all side exterior main walls is 7.5m for at least 70% of the total width of each main walls.

The proposed side main walls are 7.49m for 65% of the width of the west side main walls.

9. Chapter 10.5.40.50(4), By-law 569-2013

The level of the floor of a platform, such as a deck or balcony, located at or below the first storey of a residential building, may not exceed 1.2m in height above ground measured at any point below the platform for any part of the platform that is more than 2.5m from the rear main wall.

The proposed rear platform (deck) projects 2.92m from the rear main wall and is 2.46m above the ground below.

10. Chapter 900.3.10, Exception RD 5(A), By-law 569-2013

Despite regulation 10.20.40.70.(3), the minimum side yard setback is 1.8m.

The proposed east side yard setback is 1.2m.

11. Chapter 900.3.10, Exception RD 5(A), By-law 569-2013

Despite regulation 10.20.40.70.(3), the minimum side yard setback is 1.8m.

The proposed west side yard setback is 0.62m.

Part 2 (West Lot)

1. Chapter 10.20.30.10(1)(A), By-law 569-2013

The required minimum lot area is 550 square metres.

The proposed lot area is 255.68 square metres.

2. Chapter 10.20.30.20(1)(A), By-law 569-2013

The required minimum lot frontage is 15m.

The proposed lot frontage is 7.62m.

3. Chapter 10.20.30.40(1)(A), By-law 569-2013

The permitted maximum lot coverage is 30% of the lot area.

The proposed lot coverage is 32% of the lot area.

4. Chapter 10.20.40.10(2)(A), By-law 569-2013

The permitted maximum height of all side exterior main walls is 7.5m for at least 70% of the total width of each main walls.

The proposed side main walls are 7.49m for 45% of the width of west side main walls.

5. Chapter 10.20.40.10(2)(A), By-law 569-2013

The permitted maximum height of all side exterior main walls is 7.5m for at least 70% of the total width of each main walls.

The proposed side main walls are 7.49m for 65% of the width of the east side main walls.

6. Chapter 10.5.40.50(2), By-law 569-2013

A platform without main walls, such as a deck, porch, balcony or similar structure, attached to or within 0.3m of a building, must comply with the required minimum building setbacks for the zone: 1.80m.

The proposed rear deck is setback 1.2m from the west side lot line.

7. Chapter 10.5.40.60(1)(A)(i), By-law 569-2013

A platform without main walls, attached to or less than 0.3m 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 2.5m if it is no closer to a side lot line than the required side yard setback (1.80m).

The proposed front platform is 0.61m from the east side yard lot line.

8. Chapter 10.50.40.60(7), By-law 569-2013

Roof eaves may project a maximum of 0.9m provided that they are no closer than 0.30m to a lot line.

The proposed eaves and eavestrough are 0.16m from the east lot line.

9. Chapter 10.5.40.50(4), By-law 569-2013

The level of the floor of a platform, such as a deck or balcony, located at or below the first storey of a residential building, may not exceed 1.2m in height above ground measured at any point below the platform for any part of the platform that is more than 2.5m from the rear main wall.

The proposed rear platform (deck) projects 2.92m from the rear main wall and is 2.38m above the ground below.

10. Chapter 900.3.10, Exception RD 5(A), By-law 569-2013

Despite regulation 10.20.40.70.(3), the minimum side yard setback is 1.8m.

The proposed east side yard setback is 0.61m.

11. Chapter 900.3.10, Exception RD 5(A), By-law 569-2013

Despite regulation 10.20.40.70.(3), the minimum side yard setback is 1.8m.

The proposed west side yard setback is 1.2m.

16Mr. Romano informed the Tribunal of the results of the circulation of the application before its consideration by the Committee. The Engineering and Construction Services Division of the City had no objections and laid out matters that they wished addressed in connection with the ultimate development proposal. The Urban Forestry Division had no objection and simply advised of the necessary permit applications which would have to be made regarding City and private trees. The Toronto and Region Conservation Authority had no objection. There were no comments or submissions received from members of the public,

17The City Community Planning Division sent comments recommending refusal of the applications on the basis that although the neighbourhood has lots of similar dimensions, those lots are preponderantly further east, closer to Yonge St. At the same time, they recognize that there are two similar lots within the Immediate Context but in light of the limited number of such lots, they do not treat such lots as reflecting the prevailing character. Finally, they took issue with the requested reductions in side yard setbacks as they did not see these reduced side yards as consistent with the prevailing character of the neighbourhood.

18Mr. Romano took the Tribunal through a recent history of planning studies in what is known as the West Lansing planning area and the various zoning amendments which resulted from those studies, which have been enacted in order to implement both Provincial and City planning policy in terms of achieving intensification of use and efficiency in performance standards.

19In the course of the hearing, the Tribunal engaged in an exchange with Mr. Romano regarding the lot division and approved variances authorized for 98 Bogert Avenue in February of this year (Pasand v. Toronto (City), 2023 ONTLAB 3) as this panel heard and determined that appeal. An analysis of the West Lansing neighbourhood character, evolution of planning policy and application of that policy was extensively discussed in that decision. Mr. Romano acknowledged that the analysis articulated there applied equally in the circumstances around the Property even though the Property is further to the west of 98 Bogert Avenue.

20In addition to the two lots in the Immediate Context which have similar lot characteristics, there is also the circumstance of approved development fronting the south side of Sheppard Ave. West which extends south onto Bogert Avenue in a transitional more dense townhouse form, which is very similar to the circumstance in the vicinity of 98 Bogert Avenue. As well, on the west side of Easton Road, more or less kitty-corner to the Property, detached lots have been assembled and approved for a four-storey apartment building. Thus, the area supports a mix of housing types and densities.

21A matter to be noted here is that after Mr. Carnevale attended at the Property, he provided his assessment of the tree cover on and adjacent to the Property, with opinion as to tree health. He also made suggestions as to potential alteration to the building envelopes in order to preserve two of the front yard trees.

22The Owner accepted Mr. Carnevale’s suggestions and the plans were altered to shift the building envelopes to the south by 1.1 and 1.3 metres respectively and to narrow the driveways and redesign the front porches and walkways therefrom. This will have the effect of allowing preservation of what are labelled as Trees 2 and 3 (Colorado blue spruces) on the site plan attached to Mr. Carnevale’s revised report. There will apparently be some root impact, but Mr. Carnevale asserts that construction will not impact structural roots, only some potential impact on tertiary roots which can be managed by oversight during construction.

23Tree 5 is a failing Manitoba maple located within the permissible building envelope and Trees 1 and 4 are junipers in the front yard. These have all been identified for removal (Tree 5 in any event being a judgment call as exempt from protection due to its deteriorated structure and health).

24There is a low cedar hedge located in front of the Property within the municipal road allowance. The Owner will have to apply to the City for partial destruction or removal of this hedge, which Mr. Carnevale presumed would likely be granted as it otherwise presents a safety hazard by impairing sight lines in exiting from the driveways.

25Mr. Carnevale acknowledged the comments from the Urban Forestry Division regarding the need to apply for permission to injure tree permits and the installation of tree protection during the period of construction and he supported the imposition of conditions to this end.

26The shift of the building envelopes and front porch/walkway re-design did not result in any change to the requested variances.

27The evidence of Mr. Romano took the Tribunal through an identification of the applicable OP policies, which included a clause-by-clause review of the development criteria in Policy 4.1.5 of the OP. In his view, the redevelopment proposal here fully meets the general intent and purpose of these policies and the other applicable OP policies.

28Mr. Romano provided maps and data secured from the City to demonstrate the presence of this form of development throughout the General Neighbourhood and he unqualifiedly asserts that the proposal will be compatible with the character of development now present in the neighbourhood as well as the development which has been emerging.

29On the matter of side yard sufficiency in particular, as this was singled out by the planner from the City Community Planning Division, Mr. Romano makes the following observations. He says that the prevailing patterns of side yard setbacks are represented by different, modestly-tight to wide numeric measurements. Larger side yard setbacks where driveways are accommodated also are represented with some significance. Side yard setbacks which are smaller than the minimum base zoning standard is a prevailing pattern. The immediate context is illustrative, where 57% of one side yard setback, and 31% of both side yard setbacks are smaller than 1.8m.

30With the evidentiary background relating to the intent and purpose of the OP, Mr. Romano also touched upon the provisions of the Zoning By-law and its intent and purpose.

31Specifically, he asserts that the proposed lot frontage and lot area meet the general intent and purpose of the zoning by-law to achieve an appropriately sized lot within the Property’s physical context. The proposal achieves lot sizes that will fit in well with those that are permitted and exist. This includes a substantial inventory of lots which are smaller than the base zoning requirement. It also includes a generous inventory of permitted townhouses along Bogert Avenue. In his view, the proposal contributes to this character in an appropriate manner.

32Mr. Romano further asserts it to be his opinion that the proposal represents an appropriate, sensitive form of gentle redevelopment which minimizes impacts on the property and surroundings. He says that it maintains and improves the existing housing stock and It results in a compatible, appropriate detached dwelling site design and built form which is within the planning and public interest. On this basis, he concludes that the proposal can appropriately be considered desirable.

33Finally, it is his view that the proposal will not generate any apparent adverse effects and can thus fairly be considered as representing a minor departure from the Zoning By-law provisions.

34On the basis of the foregoing, Mr. Romano concludes that the requested variances will meet all four of the statutory tests set out in Section 45(1) of the Planning Act.

35In keeping with the comments from the City Divisions and the practice of tying the proposal to the form in which it was advanced before the Tribunal, Mr. Romano recommended that any approval of the variances be subject to conditions which he produced for the Tribunal, which will be detailed in the Order paragraphs below.

36Based upon the evidence reviewed and heard by the Tribunal, the Tribunal accepts his opinion and finds that the requested variances do satisfy the four tests of Section 45(1).

37As the proposal necessitates a severance, the decision maker is obliged to consider the matters set out in Section 51(24) of the Planning Act. Mr. Romano reviewed each of those matters in detail and concluded that due regard had been had to them and that it would thus be appropriate to grant the requested consent. His recommendation of approval came with acknowledgment that imposition of the standard conditions of consent approval utilized by the Tribunal would be appropriate in this instance, and he recommended that they be imposed should the Tribunal see fit to grant the requested consent.

CONCLUSION

38The Tribunal is persuaded by the evidence here that it is appropriate to allow these appeals and approve the severance and associated variances.

39The panel observes that essentially the same neighbourhood characteristics and intensification policy imperatives which were present in the Pasand case apply here and that the proposal here reflects the evolution of the redevelopment of this neighbourhood.

40The Tribunal is satisfied that due and proper regard has been had to the matters delineated in Section 51(24) of the Planning Act, that a plan of subdivision is not necessary and that it is appropriate to grant provisional consent to the proposed severance on the conditions which will be detailed below.

41The Tribunal is further satisfied that the four tests under Section 45(1) of the Planning Act have been satisfied as they concern the two sets of variance requests relating to the proposed severed and remnant lots.

DECISION AND ORDER

42The Tribunal ORDERS THAT the consent application decision appeal is allowed and provisional consent is given as shown on the plan filed with the Tribunal, on the condition that before a Certificate of Official is issued, as required by Section 53(42) of the Planning Act, the applicant is to fulfill the following conditions to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment:

(1) Confirmation of payment of outstanding taxes to the satisfaction of the Revenue Services Division, in the form of a statement of tax account current to within 30 days of an applicant's request to the Deputy Secretary-Treasurer of the Committee of Adjustment to issue the Certificate of Official as outlined in Condition 6.

(2) Municipal numbers for the subject lots, blocks, parts, or otherwise indicated on the applicable deposited reference plan of survey shall be assigned to the satisfaction of the Supervisor, Surveys, Engineering Support Services, Engineering and Construction Services.

(3) One electronic copy of the deposited reference plan of survey integrated to NAD 83 CSRS (3 degree Modified Transverse Mercator projection), delineating by separate Parts the lands and their respective areas, shall be filed with, and to the satisfaction of, the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services.

(4) One electronic copy of the deposited reference plan of survey satisfying the requirements of the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services shall be filed with the Deputy Secretary-Treasurer of the Committee of Adjustment.

(5) Prepare and submit a digital draft of the Certificate of Official, Form 2 or 4, O. Reg. 197/96, referencing either subsection 50(3) or (5) of the Planning Act if applicable as it pertains to the conveyed land and/or consent transaction to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment.

(6) Once all of the other conditions have been satisfied, the applicant shall request, in writing, that the Deputy Secretary-Treasurer of the Committee of Adjustment issue the Certificate of Official.

(7) Within TWO YEARS of the date of the giving of this notice of decision, the applicant shall comply with the above-noted conditions.

43The Tribunal FURTHER ORDERS THAT the appeals with respect to the variance applications are allowed and the requested variances as delineated in paragraph 15 of this Decision are approved on the following conditions:

1. The proposed dwellings shall be constructed substantially in accordance with the following plans, prepared by VIVID DESIGN AND ARCHITECTURAL CONSULTING:

a. Part 1 (Lot A):

i. Site Plan A01-1 dated 2023-11-15.

ii. North Elevation A10-1 dated 2023-11-15.

iii. West Elevation A11-1 dated 2023-11-15.

iv. South Elevation A12-1 dated 2023-11-15.

v. East Elevation A13-1 dated 2023-11-15.

b. Part 2 (Lot B):

i. Site Plan A01-2 dated 2023-11-15.

ii. North Elevation A10-2 dated 2023-11-15.

iii. West Elevation A11-2 dated 2023-11-15.

iv. South Elevation A12-2 dated 2023-11-15.

v. East Elevation A13-2 dated 2023-11-15.

2. The following Engineering and Construction Services comments shall be satisfied:

a. The applicant is required to apply for revised municipal numbering prior to the issuance of any building permit. Requests can be submitted to municipaladdress@toronto.ca.

b. The applicant shall submit revised site plans with the following revisions and notations to the satisfaction of the Engineering and Construction Services and Transportation Services, at no cost to the City:

i. Show the existing and proposed trees on-site and label any trees to be removed;

ii. Illustrate the existing and proposed grades at all corners along the property boundary;

iii. Revise the site plan to illustrate a positive slope of a minimum 2% to a maximum 4% that will be maintained on each of the proposed driveways, as measured between the proposed garage door entrance to the curb line of Bogert Avenue;

iv. Show the footprint of the existing house and driveway. Label any portion of driveway to be removed within the right-of-way as to be restored with sod.

v. The site plans must be revised to clearly indicate the restoration of the redundant portion of the former driveway and curb cuts with sod and raised concrete curb, all of which shall be designed to municipal standards;

vi. Add the following notations to the Site Plan:

1. "The applicant is required to restore any redundant section of the existing driveway that is being closed with sod and a poured raised concrete curb within the municipal boulevard according to City of Toronto Design Standard;

2. "The proposed new driveways shall be constructed to the applicable City of Toronto Design Standards at no cost to the municipality";

3. "The applicant shall also submit a Municipal Road Damage Deposit (MRDD) prior to obtaining a Building Permit." The applicant is advised to contact Right-of-Way Management Section at (416) 395-7456 regarding municipal road damage deposit requirements;" and,

4. "The applicant shall obtain the necessary authorizations and permits from the City’s Right-of-Way Management Section of the Transportation Services before excavating within or encroaching into the municipal road allowance”.

5. The owner shall submit an application to injure or remove Privately-owned tree(s), pursuant to Chapter 813 of the Municipal Code, Article III (Privately-owned trees).

6. 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.

G. Swinkin

Panel Member