Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9

Date: 2023-02-24 File: 22 210346 S45 08 TLAB Citation: Seidenfeld (Re), 2023 ONTLAB 23

DECISION AND ORDER

Issuance Date: February 24, 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): A. SEIDENFELD

Applicant(s): RUBINOFF DESIGN GROUP

Property Address: 92 DELL PARK AVE

COA File No.: 22 165572 NNY 08 MV (A0435/22NY)

TLAB Case File No.: 22 210346 S45 08 TLAB

Hearing Date(s): February 6, 2023

Decision Delivered By: TLAB Panel Member T. Kezwer

Registered Parties:

Owner: S. Seidenfeld

Applicant: Rubinoff Design Group

Appellant: A. Seidenfeld

Appellant’s Legal Rep.: M. Cara

Expert Witness: F. Romano

INTRODUCTION AND CONTEXT

1The Appellant, A. Seidenfeld, appeals a denial by the North York panel of the Committee of Adjustment for 11 variances for a proposed development on the property located at 92 Dell Park Avenue (the “Subject Property”).

2The Subject Property is located on the north side of Dell Park Avenue, with is an east-west road. The Subject Property is situated between Allen Road and Bathurst Street, two blocks south of Lawrence Avenue West, within the Englemount-Lawrence neighbourhood of the former municipality of North York. The subject property is designated ‘Neighbourhoods’ in the Official Plan and is zoned RD (f15.0; a550) x5 under the City of Toronto Zoning By-law 569-2013 (the “Zoning By-Law”).

3Prior to the hearing I visited the Subject Property and familiarized myself with the neighbourhood in which it is situated.

4The Toronto Local Appeal Body (the “Tribunal”) is allowing the appeal and the requested variances outlined below, on two conditions:

a. The proposed dwelling shall be constructed substantially in accordance with the Proposed Site Plan (A), Front Elevation, Rear Elevation, Left Side Elevation, and Right Side Elevation, prepared by Rubinoff Design Group, dated May 3, 2022, as appended to this decision.

b. The owner shall submit a complete application for a permit to injure or remove a City owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees on City Streets.

5Two exhibits were entered into the record for this hearing:

a. Exhibit 1: Expert Witness Statement of Franco D. Romano received by the Tribunal on January 03, 2023

b. Exhibit 2: Brief of Authorities in Support of Closing Arguments which were submitted to the Tribunal after the hearing concluded.

6The only individuals who participated at the hearing were the Appellant, the Appellant’s lawyer, and the Appellant’s planner. There was no opposition to this proposal before the Tribunal.

7I will now proceed to outline the statutory framework guiding this matter.

THE LEGISLATIVE AND POLICY FRAMEWORK

8A decision of the Tribunal must be consistent with the 2020 Provincial Policy Statement (the “Provincial Policy Statement”) and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (the “Growth Plan”).

9In considering a proposal for variances from the applicable Zoning By-law, the Tribunal must be satisfied that the proposal meets 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.

10The requested variances are as follows:

1. Chapter 10.5.40.50.(3), By-law No. 569-2013

In the Residential Zone category, the level of the floor of a platform, such as a deck or balcony, permitted in accordance with (2) above and located at or below the first storey of a residential building other than an apartment building, may be no higher than 1.2 metres above the ground at any point below the platform, except where the platform is attached to or within 0.3 metres of a rear main wall, any part of the platform floor located 2.5 metres or less from the rear main wall may be no higher than the level of the floor from which it gains access.

The proposed platform projects 3.66 metres from the rear main wall.

2. Chapter 10.5.100.1.(1), 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 6.0 metres to 23.0 metres inclusive, or a townhouse dwelling unit at least 6.0 metres wide, a maximum of 5.69 metres wide.

The proposed driveway is 7.37 metres wide.

3. Chapter 10.20.30.40.(1), By-law No. 569-2013

The permitted maximum lot coverage is 35.0 % of the lot area.

The proposed lot coverage is 41.6 % of the lot area.

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

The permitted maximum height of all side exterior main walls facing a side lot line is 7.5 metres.

The proposed height of the side exterior main walls facing a side lot line is 7.83 metres.

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

The permitted maximum number of storeys is 2.

The proposed number of storeys is 3.

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

In the RD zone, for a detached house, the elevation of the lowest point of a main pedestrian entrance through the front wall or a side main wall may be no higher than 1.2 metres above established grade.

The proposed height of the first floor above established grade is 1.56 metres.

7. 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 17.57 metres.

8. Chapter 10.20.40.70.(2), By-law No. 569-2013

The required minimum rear yard setback is 7.85 metres.

The proposed rear yard setback is 7.11 metres.

9. Chapter 900.3.10(5), By-law No. 569-2013

The required minimum side yard setback is 1.8 metres.

The proposed East side yard setback is 1.22 metres.

10. Chapter 900.3.10(5), By-law No. 569-2013

The required minimum side yard setback is 1.8 metres.

The proposed West side yard setback is 1.22 metres.

11. Section 13.2.6, By-law No. 7625

The maximum permitted building height is 8.8m.

The proposed building height is 9.43m.

SUMMARY OF EVIDENCE

11Franco D. Romano was qualified as a planning expert to give his planning opinion on the matter before the Tribunal. Mr. Romano has extensive experience as a land use planner, having been the founding Principal of Action Planning Consultants since 1998. Mr. Romano worked as a land use planner prior to founding his land use planning consulting firm.

12Mr. Romano’s opinion was that the proposed development has appropriate regard for matters of provincial interest, is consistent with the Provincial Policy Statement and conforms to the Growth Plan.

13In addition, Mr. Romano’s opinion was that the proposed development respects and reinforces the existing physical character, is compatible with the existing and planned context, and represents good planning. The proposal has been designed to minimize site disturbances, including City tree protection, and be sympathetic to the existing physical character.

14Mr. Romano’s opinion concluded that the proposed development satisfies all four tests under Section 45(1) of the Planning Act for the minor variances being sought, individually and cumulatively.

15When analyzing the proposal, Mr. Romano noted that the proposed dwelling footprint is non-uniform. Building setbacks are as follows:

a. Front yard ranging from 6.78m to 8.22m.

b. Rear yard setback ranging from 7.11m to 8.03m.

c. Side yard setbacks ranging from 1.22m to 2.69m and 9.05m.

16Mr. Romano also noted that the proposal incorporates several site layout and built form features to ensure that it fits compatibly into its physical context, respecting and reinforcing its surroundings. These include that:

a. The building footprint is placed overtop the existing dwelling building area and aligns well with adjacent dwellings. The dwelling tapers to the rear, including a modest rear bump-out to accommodate a basement bedroom and ground floor kitchen breakfast nook. The proposed design preserves the existing rear yard mature tree.

b. The building length and depth are physically shorter than the zoning by-law measurement of 17m and 19m, respectively. However, the combined measurement of the staggered front and rear walls triggers a technical building length measurement of 17.57m for the basement and ground floor. The second floor (technically referred to as the third storey) measures 16.66m.

c. The detached dwelling exhibits a conventional two storey dwelling design, with above grade integral garage. The third storey is triggered because there is living space within a portion of the garage area.

d. The roof incorporates a sloped, hip-design with a centrally located cap that minimizes the perceived height and massing of the dwelling.

e. The existing curb cut and driveway location are being utilized. The driveway is straightened within the boulevard and widens on private property in a tapered manner as it approaches the dwelling’s integral garage. This helps to minimize disturbances, maintains an expansive front yard and boulevard condition and preserves the City tree. The driveway widens to 7.37m in front of the garage, which is a variance even though the majority of the driveway is by-law compliant at 3.4m. The wider portion of the driveway is located behind the City tree that is being preserved, and is therefore less noticeable from the public realm. The proposed driveway material is permeable pavers.

17Pursuant to Policy 4.1.5 of the Official Plan, Mr. Romano delineated an Immediate Context and Broader Context. The Immediate Context was comprised of 29 properties on Dell Park Avenue between Englemount Ave to the west and Dalemount Ave to the east. These properties have the following physical characteristics:

a. Building height: 72% of detached dwellings contain two storeys and an integral garage. This includes dwellings with prominent three storeys, depicted by visible floor levels or fenestration.

b. Building lengths range from 7.2m to 18.58m, with 21% of residential buildings exceeding 17.0m.

c. Lot coverages range from 17.23% to 45.27%, with 72% of existing development exceeding the zoning lot coverage standard of maximum 35%.

d. Side yard setbacks: 96% of dwellings have side yard setbacks smaller than the base zoning standard of minimum 1.8m. Side yard setbacks smaller than 1.2m are represented by 55% of dwellings.

18The Broader Context determined by Mr. Romano included approximately 620 properties within the geographic area bounded by Allen Road to the west, Bathurst Street to the east, Lawrence Avenue West to the north and Glencairn Avenue to the south.

19The Immediately Adjacent Block(s) was the balance of Dell Park Avenue, consisting of 121 properties.

20Mr. Roman opined, and I accept that there is no significant difference between the Broader and Immediate contexts in the case at hand.

21Mr. Romano noted that both the Zoning By-Law and Official Plan permit and achieve an assortment of building types, lot size and built form height, mass, scale, density, setbacks as part of the existing and planned context. Mr. Romano asserted and I accept that the neighbourhood exhibits this assortment within both the Broader and Immediate contexts.

22The Appellant’s legal counsel, Michael Cara, provided the case of Toronto Standard Condominium Corp. #1517 v Toronto (City) Committee of Adjustment, [2006] O.M.B.D. No. 707, and among other paragraphs, cited paragraph 7 where the Ontario Municipal Board asserted that

the legislature has in s. 45(1) of the Planning Act created a statutory process whereby a relief is made available to avoid the strait-jacket or rigid applications of the zoning by-law. The relief in question has been designed so that an independent tribunal, whether it is a Committee of Adjustment or the Board, can review and determine whether it can be granted on an individual case using the statutory tests set out.

I agree that the role of the Tribunal in this hearing is to determine whether the requested relief from the Zoning By-Law can meet the four statutory tests under section 45(1) of the Planning Act. It is the context of the proposal and not the straight-jacket of the Zoning By-Law that will determine the success or failure of the proposal.

23I further accept the Ontario Municipal Board’s assertion at paragraph 12 that “The decision maker must therefore chase after the question whether the planning objectives would be fulfilled if the variance were to be allowed.”

ISSUES AND ANALYSIS

24Mr. Romano opined that the proposal is consistent with the Provincial Policy Statement and conforms to the Growth Plan. Mr. Romano cited numerous sections from both of these documents which I do not feel it is necessary to review in this decision as these documents are general in nature and provide the framework within which the Official Plan and Zoning By-Law operate. I accept Mr. Romano’s opinion on this matter.

25I will now go through the four statutory tests and the evidence provided by Mr. Romano on each test.

Do the proposed variances maintain the general intent and purpose of the Official Plan?

26Mr. Romano provided his opinion that the proposed variances maintain the general intent and purposes of the Official Plan in relation to various Policies, including: 2.3.1.1 Healthy Neighbourhoods; 3.1.3 Built Form; 3.2.1 Housing; and 3.4 Natural Environment. I accept Mr. Romano’s opinion that the proposed variances maintain the general intent and purpose of the Official Plan in relation to the cited policies.

27Policy 4.1.5 represents the heart of the matter, and it outlines Development Criteria for Neighbourhoods.

28Mr. Romano cited: Policy 4.1.5.a) patters of streets, blocks and lanes, parks and public building sites; Policy 4.1.5.b) prevailing size and configuration of lots; 4.1.5c) prevailing heights, massing, scale density and dwelling type of nearby residential properties; Policy 4.1.5d) prevailing building type(s); Policy 4.1.5.e) prevailing location, design and elevations relative to the grade of driveways and garages; Policy 4.1.5.f) prevailing setbacks of buildings from the street or streets; prevailing patterns of rear and side yard setbacks and landscaped open space; Policy 4.1.5.h) continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood; and Policy 4.1.5.i) conservation of heritage buildings, structures and landscapes. I accept Mr. Romano’s opinion provided during his testimony and outlined in Exhibit 1 that the proposal maintains the general intent and purpose of each cited subsection in Policy 4.1.5.

29In addition, Mr. Romano cited Policy 4.1.8 which provides a direct link to the zoning by-law standards for the purpose of evaluating compatibility. Mr. Romano provided neighbourhood pictures and a decision table to inform and illustrate this land use planning principle. Mr. Romano opined that within the Immediate Context and the Broader Context, development exists and continues to occur, in a manner that is at variance with base zoning by-law performance standards. Mr. Romano further opined that this is a prevailing physical character. I accept this opinion as provided by Mr. Romano, and find that the requested variances reflect appropriate conditions and are compatible with the form of development that exists and is being experienced in the Immediate Context and the Broader Context.

30In conclusion, I find that the proposed variances maintain the general intent and purpose of the Official Plan.

Do the variances maintain the general intent and purpose of the Zoning By-Law?

31Mr. Romano opined that the proposal maintains the overall general intent and purpose of the Zoning By-Law. Mr. Romano asserted that the detached dwelling will maintain an appropriate organization and location of development for the Subject Property. Similarly, the proposal is capable of co-existing in harmony with the diversity of dwellings located within the Subject Site’s physical context. The proposal will also maintain appropriate spacing, servicing and amenity areas. I accept Mr. Romano’s opinion that the proposal maintains the overall general intent and purpose of the Zoning By-Law.

32The proposal calls for 11 variances, and I will now briefly touch upon a few of these individual variances.

33The proposed rear deck projects 3.66m whereas maximum 2.5m is permitted. The deck is attached to the western portion of the rear wall. The general intent and purpose of the projection provision is to ensure that the platform maintains a subordinate attachment to the dwelling and does not extend inappropriately deep into the lot. Mr. Romano asserted and I accept that the proposed deck is a subordinate attachment, maintains an open rear yard area and meets the general intent and purpose of the zoning by-law.

34The proposed driveway width is 7.37m whereas maximum 5.69m is permitted, being the width of the parking space beyond the driveway. The driveway flares in front of the garage only. The balance of the driveway is 3.4m wide and would therefore be by-law compliant. The general intent and purpose of the driveway width standard is to ensure that suitable space is provided to provide access to and from parking beyond the main front wall of the dwelling. I accept that the proposed driveway width meets the general intent and purpose of the zoning by-law because it allows for the driveway to flare beyond the City tree that is to be protected, permitting suitable space to provide access to parking.

35The building height in storeys variance is to permit the dwelling to have 3 storeys whereas maximum 2 storeys is permitted. The variance is to permit living space within a portion of the integral garage. The living space represents 53.7m2, which is approximately 33% of the dwelling footprint. It consists of a laundry room, washroom and an additional room which can be utilized as living space (for example, as an office or bedroom). Mr. Romano opined that the general intent and purpose of the building height in storeys zoning standard is to ensure that the dwelling maintains a low rise, ground oriented dwelling. Mr. Romano asserted that the proposed dwelling maintains a conventional two storey physical form that is consistent with other dwellings of two and three storeys. The requested variance is technical in nature because it is accounting for a partial floor that could also be considered a split level design. I accept that the general intent and purpose of the zoning by-law is maintained with this requested variance.

36I find that the other variances, including lot coverage, wall height, first floor height, building length, rear yard setback side yard setback, and building height under North York Zoning By-law 7625, maintain the general intent and purpose of the relevant Zoning By-Law provisions.

37In conclusion, the requested variances maintain the general intent and purpose of the relevant Zoning By-Law provisions individual and cumulatively.

Are the variances desirable for the appropriate development or use of the land?

38Mr. Romano opined that the proposal represents a thoughtful, sensitive form of development which minimizes impacts on the Subject Site and surroundings. The proposal maintains and improves the existing housing stock. It results in a compatible, appropriate detached dwelling site design and built form which is within the planning and public interest.

39I accept Mr. Romano’s opinion that the variances are desirable for the appropriate development or use of the land.

Are the variances minor?

40Mr. Romano provided his opinion that the proposal creates no unacceptable adverse impact, and the order of magnitude of the variances request is minor. Mr. Romano noted that the determination of minor is not based on a mathematical calculation. Mr. Romano provided his opinion, and I accept that the research he conducted in regards to the Subject Property’s physical context, as well as the Decision Table summary in Exhibit 1, demonstrate that the proposed variances are in keeping with the qualitative and numeric range of variance conditions that exist within the Subject Property’s physical context.

41I accept that the variances individually and cumulatively are minor.

CONCLUSION

42In conclusion, I find that the proposed development is consistent with the 2022 Provincial Policy Statement and conforms to the 2019 Growth Plan.

43I also find that the proposed development satisfies all four section 45(1) tests for the proposed minor variances, both individually and cumulatively.

DECISION AND ORDER

44The appeal is allowed on two conditions:

c. The proposed dwelling shall be constructed substantially in accordance with the Proposed Site Plan (A), Front Elevation, Rear Elevation, Left Side Elevation, and Right Side Elevation, prepared by Rubinoff Design Group, dated May 3, 2022, as appended to this decision.

d. The owner shall submit a complete application for a permit to injure or remove a City owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees on City Streets.

T. Kezwer

Panel Member