Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
2023-12-08
23 147220 S53 06 TLAB, 23 147222 S45 06 TLAB, 23 147223 S45 06 TLAB
Pilarski (Re), 2023 ONTLAB 171
DECISION AND ORDER
Issuance Date:
December 8, 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):
J. PILARSKI
Applicant(s):
RUBINOFF DESIGN GROUP
Property Address:
164 CLANTON PARK RD
COA File No.:
22 234910 NNY 06 CO (B0050/22NY), 22 234907 NNY 06 MV (A0771/22NY), 22 234903 NNY 06 MV (A0772/22NY)
TLAB Case File No.:
23 147220 S53 06 TLAB, 23 147222 S45 06 TLAB, 23 147223 S45 06 TLAB
Hearing Date(s):
October 17, 2023, and October 20, 2023
Decision Delivered By:
TLAB Panel Member S. Makuch
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Applicant | Rubinoff Design Group | |
| Appellant | J. Pilarski | A. Stewart |
| Party | F. Muraca | |
| Party | S. Muraca | |
| Expert Witness | F. Romano |
INTRODUCTION AND CONTEXT
1This is an appeal by the applicant of the refusal by the Committee of Adjustment of an application for consent to sever 164 Clanton Park Rd. into two lots and for variances to permit the construction of a dwelling, with an integral garage and a rear deck walk out on each lot. Each dwelling would require 17 variances. The variances relate to: set backs, wall and pedestrian entry heights, deck size, dwelling length, deck size, number of stories, lot coverage, and most importantly lot frontage and lot area. There was only one party in opposition, the adjacent neighbour to the west, who was specifically concerned about the proposed lot frontages and lot areas. The required frontage is 15m while frontages of 9.6 m are proposed. The required lot area is 550 m2, while areas of 439.4 m2 are proposed. There were no other opponents and, although City planning staff had written a report in opposition to the applications, no other departments had expressed opposition. The City councillor wrote a letter in favour of the proposal. The City did not appear at the hearing .
THE LEGISLATIVE AND POLICY FRAMEWORK
2Provincial 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’).
3Consent – 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;
(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).
4Variance – 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
5The evidence focused on the two main variances, the frontage and the area the lots. The basic concern was whether the lot areas and lot frontages conformed with the official plan or whether they met its general intent and purpose. It is clear from the evidence that the relevant policy of the Official Plan is that development on land designated Neighbourhood, as these lands are, should respect and reinforce the physical character of the area. On the face of the application, the evidence that these two variances are substantial was not contradicted. As the neighbour pointed out the proposed frontages would be a 36% reduction in the required frontage. In addition, the lot areas would be reduced by approximately 20%.
6The evidence of the applicant’s planner, who was qualified to give opinion evidence, did not contradict these percentages. His evidence can be summarized as an analysis that led to the conclusion that the neighbourhood was one of mixed frontages, and areas of different sizes. In brief, the broader neighbourhood and the immediate area had, in his view, no prevailing character but rather one a mixed character with a variety of heights, setbacks, frontages, and sizes. He pointed out that 168 Clanton Park Rd.is 9.8m in width and 407m2 in area. This is in contrast to 164 Clanton Park Rd., which currently has a frontage of 19.2 m and area of 878.8m2. In his opinion the proposed lots would fit in the area and respect and reinforce this mixed character and would be more in keeping with the character of 168 Clanton Park Rd. than the current size of 164 Clanton Park Rd.
7The neighbour, who was not a planner, and therefore was not qualified to give opinion evidence, presented relevant facts in opposition. She did not disagree with the statistics related to 168 Clanton Park Rd. but pointed out that it was created though a special agreement with a school to permit a dwelling on its former driveway. As a result, it was the only lot of such a small frontage and area in the immediate context. Moreover, she demonstrated, not only that lots of a small frontage and area (comparable to those proposed) were located in clusters, but also that they were significantly distant from the lots to be created. Such small lots accounted for only 3% of the lots in the neighbourhood. There were only 19 homes out of 654 homes, in the broader context she examined, which were on lots less than 9.6 m. and only 1 home , 168 Clanton Park Rd. in the immediate context of size similar to those proposed.
8She demonstrated as well that it was not common to have large frontage lots mixed with small lots or large frontage lots abutted by small lots on both sides. Yet this would be the result if the consent were granted as her property which would be abutted by two small frontage lots to the east and a small frontage lot to the west.
9My own visit to the area supported the neighbour’s evidence. The neighbourhood had the character of a mixture of lot frontage and sizes, larger than those proposed, and with two clusters of smaller lots significantly distant from 164 Clanton Park Rd. In brief, there were few narrow, small lots and they were in clusters far from 164 Clanton Park Rd., with the exception of 168 Clanton Park Rd.
ISSUES AND ANALYSIS
10The issue facing me, as stated above, was whether the frontage and area of the proposed lots would respect and reinforce the character of the area. I find that the clusters of lots with small frontages and area, distant from the proposed consent, do not establish the area as one of mixed character. Rather the neighbourhood is one of various large frontages and areas with a small number of clustered smaller lots. Only one small lot is in the immediate vicinity of the proposed consent. Although the other variances may be acceptable, they do not result in a proposal which respects and reinforces the physical character of the area or result in the consent conforming with the official pan or its general purpose and intent, as the lot size and area are too small.
CONCLUSION
11I find that the proposed lot frontage and lot size do not meet the requirements of s. 53(c) and 45(1) of the Planning Act and that the minor variances and consent respecting them should not be approved. As a result, the development should not proceed, and the other variance as well should be refused.
DECISION AND ORDER
12The decision of the Committee of Adjustment is upheld, and the appeal is dismissed.
S. Makuch
Panel Member